Friday, 27 September 2013

Luzerne County Courthouse in Wilkes-Barre, Pennsylvania
The "kids for cash" scandal unfolded in 2008 over judicial kickbacks at the Luzerne County Court of Common Pleas in Wilkes-Barre, Pennsylvania. Two judges, President Judge Mark Ciavarella and Senior Judge Michael Conahan, were accused of accepting money from Robert Mericle, builder of two private, for-profit juvenile facilities, in return for contracting with the facilities and imposing harsh sentences on juveniles brought before their courts to increase the number of inmates in the detention centers.[1][2]

For example, Ciavarella sentenced children to extended stays in juvenile detention for offenses as minimal as mocking a principal on Myspace, trespassing in a vacant building, and shoplifting DVDs from Wal-mart.[3] Ciavarella and Conahan pled guilty on February 13, 2009, pursuant to a plea agreement, to federal charges of honest services fraud and conspiracy to defraud the United States (failing to report income to the Internal Revenue Service, known as tax evasion) in connection with receiving $2.6 million in payments from managers at PA Child Care in Pittston Township and its sister company Western PA Child Care in Butler County.[4][5] The plea agreement was later voided by a federal judge, who was dissatisfied with the post-plea conduct of the defendants, and the two judges charged subsequently withdrew their guilty pleas, raising the possibility of a criminal trial.[6]

A federal grand jury in Harrisburg, Pennsylvania returned a 48 count indictment[7] against Ciavarella and Conahan including racketeering, fraud, money laundering, extortion, bribery and federal tax violations on September 9, 2009.[8][9] Conahan entered a revised guilty plea to one count of racketeering conspiracy in July 2010.[10] In a verdict reached at the conclusion of a jury trial, Ciavarella was convicted February 18, 2011 on 12 of the 39 counts he faced.[11][12]

Following the original plea agreement, the Pennsylvania Supreme Court ordered an investigation of the cases handled by the judges and following its outcome overturned several hundred convictions of youths in Luzerne County.[13] The Juvenile Law Center filed a class action lawsuit against the judges and numerous other parties, and the state legislature created a commission to investigate the wide-ranging juvenile justice problems in the county.[14][15] (See: JLC's growing list of related Court Documents[16])

An investigation into improper sentencing in Luzerne County began early in 2007 as a result of requests for assistance from several youths received by the Philadelphia-based Juvenile Law Center. Lawyers from the law center determined that several hundred cases were tried without the defendants receiving proper counsel. In April 2008, the Juvenile Law Center petitioned the Pennsylvania Supreme Court seeking relief for alleged violation of the youths' civil rights. The application of relief was later denied, then reconsidered in January 2009 when charges of corruption against the judges surfaced.[17]

The Federal Bureau of Investigation and the Internal Revenue Service also investigated the two judges while probing practices in Luzerne County, although the exact dates and scope of the investigations by the two federal agencies were not made public.[18] Part of the investigation was revealed to have occurred during disciplinary hearings over the conduct of another former Luzerne County judge, Anne H. Lokuta.[19] Lokuta was brought before the Judicial Conduct Board of Pennsylvania in November 2006 to answer charges of using court workers to do her personal bidding, openly displaying bias against some attorneys arguing before her, and publicly berating staff to cause mental distress.[20]

The board ruled against Lokuta in November 2008 and she was removed from the bench. During the course of the disciplinary hearings, Lokuta accused then Judge Michael Conahan of bullying behavior and charged that he was behind a conspiracy to have her removed.[21] Lokuta aided the federal investigation into the "kids for cash" scheme prior to the determination of the disciplinary board, and a stay order was issued in March 2009 by the state Supreme Court in light of the ongoing corruption investigations, halting Lokuta's removal and the election that was to be held in May to replace her.[22]

Charges and pleas[edit]

A statement from the office of the United States Attorney for the Middle District of Pennsylvania outlined the charges against the two judges on January 26, 2009. The charges outlined in the information[23] described actions between 2000 and 2007 by both judges to assist in the construction and population of private juvenile facilities operated by the two Pennsylvania Child Care companies, acting in an official capacity in favor of the private prisons over the facility operated by Luzerne County.[18]

The U.S. Attorney charged that in 2002 Conahan, who at the time was President Judge of the court, used his authority to remove funding for the county-operated facility. The judges were alleged to have received "millions of dollars" in payments for the completion of a binding agreement between the court and the private facilities, co-owned by attorney Robert Powell, to use their services and the subsequent closing of the county facility.[24] The methods used to conceal the payments involved several parties and transactions which resulted in allegations of tax evasion by the two. Ciavarella and Conahan were also charged with "Ordering juveniles to be sent to these facilities in which the judges had a financial interest even when Juvenile Probation Officers did not recommend detention," according to the statement.[24]

The original, negotiated plea agreement called for both judges to serve up to seven years in prison, pay fines and restitution, and accept responsibility for the crimes.[1] However, on July 30, 2009, Judge Edwin M. Kosik of Federal District Court in nearby Scranton rejected the plea agreement, citing "post-guilty plea conduct and expressions from the defendants" that he ruled did not satisfy the terms of the agreement. Kosik wrote that Conahan and Civarella continued to deny their crimes even in the face of overwhelming evidence, and therefore did not merit sentences that were well below federal sentencing guidelines. [25][26] Attorneys for the two judges brought a motion requesting reconsideration of the judge's rejection of the plea agreement.[27] The motion was denied on August 24, 2009, and Ciavarella and Conahan subsequently withdrew their guilty pleas, an action which eventually resulted in a jury trial for Ciavarella and additional charges against the former judges.[6]

On September 9, 2009, a federal grand jury in Harrisburg, Pennsylvania returned a 48 count indictment[7] against Ciavarella and Conahan including racketeering, fraud, money laundering, extortion, bribery, and federal tax violations. Both judges were arraigned on the charges on September 15, 2009.[8][9] Ciavarella and Conahan entered pleas of not guilty to the 48 count indictment and remained free on one million dollar bail despite federal prosecutors' contentions that their bail should be raised since they faced the possibility of substantially more prison time and that there was evidence of their attempts to shield assets.[28]

Robert Powell, an attorney and co-owner of the two juvenile detention facilities at the heart of the scandal, pleaded guilty on July 1, 2009, to failing to report a felony and being an accessory to tax evasion conspiracy, in connection with $770,000 in kickbacks he paid to Ciavarella and Conahan in exchange for facilitating the development of his facilities.[5][29][30] The Pennsylvania Supreme Court temporarily suspended Powell’s law license on September 1, citing his criminal conviction.[31]

Robert Mericle, the prominent real estate developer who built the two juvenile detention facilities, pleaded guilty on September 3, 2009, to failing to disclose a felony, for not revealing to a grand jury that he had paid $2.1 million to Ciavarella and Conahan as a finder's fee. As part of his plea, Mericle agreed to pay $2.15 million to fund local children's health and welfare programs. Mericle faces up to three years in prison and a maximum $250,000 fine but will likely serve one year or even probation pursuant to his plea agreement.[29][32][33]

Sandra Brulo, the former Deputy Director of Forensic Services for the Luzerne County Juvenile Probation Office agreed to plead guilty in March 2009 to federal obstruction of justice. When she became aware that she had been named in the federal civil action, Brulo fabricated a recommendation concerning a juvenile who appeared before the Luzerne County Juvenile Court in September 2007. She backdated the fabricated recommendation and changed her original recommendation of detention to probation.[34]

Criminal verdicts[edit]

On February 18, 2011, following a trial, a federal jury convicted Ciavarella on 12 of the 39 counts he faced including racketeering, a crime in which prosecutors said the former judge used children "as pawns to enrich himself." In convicting Ciavarella of racketeering, the jury agreed with prosecutors that he and another corrupt judge had taken an illegal payment of nearly $1 million from a juvenile detention center's builder and then hidden the money.[11]

The panel of six men and six women also found Ciavarella guilty of "honest services mail fraud" and of being a tax cheat, for failing to list that money and more on his annual public financial-disclosure forms and on four years of tax returns. In addition, they found him guilty of conspiring to launder money. The jurors acquitted Ciavarella of extortion and bribery in connection with $1.9 million that prosecutors said the judges extracted from the builder and owner of two juvenile-detention centers, including allegations that Ciavarella shared in FedEx boxes stuffed with tens of thousands of dollars in cash.

Following Ciavarella's conviction, he and his lawyer appeared on the steps of the courthouse to give an impromptu press conference. The press conference was interrupted by Sandy Fonzo, whose son Edward Kenzakoski committed suicide after Ciavarella gave him a jail sentence, despite Kenzakoski's first-time offender status.[35]

On August 11, 2011, Ciavarella was sentenced to 28 years in federal prison as a result of his conviction.[36] He is currently being held at the Federal Correctional Institution, Pekin, a federal prison in Illinois which holds minimum and medium security inmates, and is scheduled for release in 2035.[37] He appealed his conviction to the Third Circuit and it was rejected on July 25, 2013. [38]

On September 23, 2011, Conahan was sentenced to 17-and-a-half years in federal prison as a result of his pleading guilty to one count of racketeering conspiracy.[39] He is currently being held at a minimum security facility at the Federal Correctional Complex, Coleman in Florida and is scheduled for release in 2026.[40]

On November 4, 2011, Powell was sentenced to 18 months in federal prison as a result of his pleading guilty to failing to report a felony and being an accessory to tax conspiracy. He was incarcerated at the Federal Prison Camp, Pensacola, a minimum security facility in Florida, and was released from a halfway house on April 16, 2013.[41][42] [43]

Robert Mericle's sentencing in connection with his pleading guilty to failing to report a felony has been delayed pending his testimony in the bribery trial of former Pennsylvania State Senator Raphael Musto, which is scheduled for June. Mericle faces up to three years in prison, although he is likely to receive 12 to 18 months under United States Federal Sentencing Guidelines.[44][45]

Victim lawsuits[edit]

Acting under a rarely used power established in 1722 and reserved for extraordinary circumstances, known as "King's Bench jurisdiction",[46] the Pennsylvania Supreme Court appointed a special master on February 11, 2009 to review all juvenile cases handled by Ciavarella.[47] Senior Judge Arthur Grim of the Berks County Court of Common Pleas was appointed special master and returned his findings in an interim report dated March 11.[48] On March 26 the Supreme Court approved Grim's recommendations and ruled that Ciavarella had violated the constitutional rights of thousands of juveniles, and hundreds of juvenile convictions were ordered overturned.[13][49]

A class action lawsuit was filed by the Juvenile Law Center on behalf of the juveniles who were adjudicated delinquent by Ciavarella despite not being represented by counsel or advised of their rights. Besides naming Ciavarella and Conahan, the suit seeks damages under the civil portion of the Racketeer Influenced and Corrupt Organizations Act (RICO) against the judges' spouses and business associates, shell companies, prison operators, and Luzerne County.[15][50] Three other federal lawsuits filed on behalf of the victims have been consolidated with the Juvenile Law Center lawsuit into a master class action.[51] An amended master complaint was filed on August 28, 2009.[52]

In June 2010 an injunction was filed on behalf of PA Child Care, Western PA Child Care, and Mid Atlantic Youth Services, the companies that provided treatment programs at the juvenile detention centers,[53] to prevent the ordered destruction of thousands of juvenile records on the grounds the records are needed for the defense's case.[53]

On July 8, 2013, a three-judge panel of the Third Circuit Court of Appeals ruled in the case of Markel International Insurance Company v. Robert J. Powell, (his business partner) Gregory Zappala, et al, that the insurance company had no obligation to defend or indemnify the individuals or corporations involved, leaving the defendants liable for adverse judgments.[54]

Interbranch Commission on Juvenile Justice[edit]

In the aftermath of the federal charges and defendant pleas, the Pennsylvania General Assembly moved to create a commission to investigate the entire set of circumstances surrounding the miscarriage of justice in Luzerne County. Sponsored by Representative Todd Eachus of Butler Township in Luzerne County, House Bill 1648[55] established the Interbranch Commission on Juvenile Justice in July 2009. The commission comprises 11 members, appointed from each branch of government in Pennsylvania, with four members chosen by the judiciary, four by the legislature and three by the governor.[14]

In signing the legislation on August 7, 2009, Governor Ed Rendell castigated Ciavarella and Conahan, saying they "violated the rights of as many as 6000 young people by denying them basic rights to counsel and handing down outrageously excessive sentences. The lives of these young people and their families were changed forever."[14] Scheduled to meet a minimum of once per month, the commission was organized to investigate the actions of and damages caused by the two judges and review the state of the Luzerne County courts left in the wake of their tenures.[56][57] The commission was given power of subpoena and was required to complete its work and report its recommendations and findings to the three branches of state government by May 31, 2010.[58]

Popular culture[edit]

The scandal has led to several portrayals in fictional works. Both the Law & Order: SVU episode "Crush" and an episode of The Good Wife featured corrupt judges sending children to private detention centers. An episode of Cold Case called "Jurisprudence" is loosely based on this event. [59][60][61]

See also[edit]

Pennsylvania portal

Criminal justice portal

Carceral archipelago
Incarceration in the United States
Private prison
School-to-prison pipeline
Prison-industrial complex

Categories: Political scandals in Pennsylvania
Political corruption scandals in the United States
Juvenile law
Luzerne County, Pennsylvania
Penal system in the United States
Crime in Pennsylvania
2008 scandals
2008 in Pennsylvania

§ The noble Lord said: As the Minister will remember, this issue was debated last Thursday. However, as this amendment is tabled for today, and a number of other amendments are grouped with it. I shall move the amendment and speak to it briefly, but I shall withdraw it at the appropriate stage.

§ We are dealing with the power of the Secretary of State to make orders that derogate from the liberty of the individual. The noble and learned Lord the Lord Chancellor has said that they are the gravest orders and that they involve, at least, house arrest.

§ The Bill as it now stands allows the Secretary of State to make such an order, imposing an obligation that is incompatible with Article 5 of the European Convention on Human Rights, if he is satisfied on a balance of probabilities that an individual is or has been involved in terrorism-related activities. I believe, as I said on Thursday, that that standard of proof is too low. Where the Secretary of State is minded to make an order which, it is accepted, is intended to deprive the individual of his liberty in the circumstances we discussed, he should at least be required to be satisfied beyond reasonable doubt—namely, on the criminal standard of proof—prior to making that order.

§ As I say, there is no purpose in repeating everything that was said on the last occasion, but it is important to remind the Committee that we are dealing with the most serious orders which it is intended that the Secretary of State should be able to make. On that occasion I realised that the majority of those on both Front Benches, while accepting that there should be a clause which puts the burden of proof on the Home Secretary, nevertheless said that the standard of proof should be on the basis of the balance of probabilities. Therefore, it would be pointless to pursue an amendment which was bound to fail if that was the view of other Members of the Committee.

§ At least two noble Lords on the government Benches begged me not to withdraw the amendment at that stage because they felt, like myself, that the criminal burden of proof is the appropriate burden of 483 proof for such an order. All I need say at this moment is that we debated the matter last Thursday. I beg to move.

§The Earl of Onslow
My name is also on the amendment. Before we came into the Chamber I was nobbled by a Whip who said to me, "You are not to talk for too long". When I saw my name on the amendment I just thought to myself that you should not have to talk for too long in order to say that it is completely wrong to take away the liberty of a subject and lock him up on the balance of probabilities. I shall now sit down.

§Lord Lloyd of Berwick
I support as strongly as I can the amendment proposed by the noble Lord, Lord Carlisle. The difficulty is that we are concerned with what are supposed to be civil proceedings. I do not think that that is how they will seem to the suspect who is made subject to these proceedings. The only analogy in the civil law that I can think of—I have mentioned this already—is the non-molestation order in domestic proceedings and the anti-social behaviour order. One only has to mention those orders to see how many million miles they are away from what is proposed under Clause 2.

If those were in truth and in reality civil proceedings, of course the balance of probabilities would be the right burden of proof. But here the consequences, as is accepted, are the deprivation of liberty, which is a criminal and not a civil sanction. It follows to my mind that the correct burden of proof, whether it be applied to the Secretary of State or the judge, is the criminal burden of proof: he should be satisfied beyond reasonable doubt before he makes an order with these consequences. That is why I support the amendment.

§The Lord Bishop of Chester
It is difficult for those of us who are not legally qualified sometimes to follow all the details of these matters, but the comparison between the civil and the criminal standard arose recently in the Church of England when a new clergy discipline measure went through the Synod and was approved by Parliament.

Members on the Ecclesiastical Committee will know that there was much discussion about the Church moving from the criminal standard to the civil standard in the application of the discipline measure, particularly because for clergy their livelihood and the place where they live would be at stake. There was a strong mood, both in the Synod and to some extent on the Ecclesiastical Committee, to retain the criminal standard for that reason.

The Synod was persuaded to move to the civil standard because it was told that when more serious offences were under consideration the civil standard had a certain flexibility in it so that it would be more difficult to apply the more drastic, as it were, the outcome. That was recognised in the report of the Ecclesiastical Committee when it declared that the measure was "expedient". The Ecclesiastical Committee, as I recall, said that if a cleric's livelihood and home were at stake the civil standard approximates to the criminal standard.

484 Is there flexibility in the application of the term "balance of probabilities", to recognise the point which the noble and learned Lord, Lord Lloyd, has just made that if someone's liberty is at stake, even if the standard is technically a civil standard, in practical purposes it needs at least to approximate to the "beyond reasonable doubt" standard?

We all agree that it would be much better for these cases to be prosecuted in the criminal courts. The noble and learned Lord, Lord Lloyd, has often and rightly made that point. But there is a danger of a temptation slipping in. If the standard of proof for a derogating control order is significantly lower than the criminal standard, will there not be a danger over the years for the authorities to default to it too quickly?

One also has to think—this point was slightly raised at Second Reading, but perhaps not enough—what the actual social impact will be of these orders. Somebody under house arrest will become a cause célèbre very easily. If that cause célèbre is seen to he under-girded by anything other than a fairly thorough standard of proof—however we express it legally—there is a real danger of that cause célèbre being socially disruptive in ways we have not anticipated. So, what does the term "balance of probabilities" mean to a layman like me in relation to the sense of natural justice which has just been referred to?

§ 3.15 p.m.

§Lord Rees-Mogg
I should like to support the amendment on these grounds. I think that the Committee would be very anxious to avoid miscarriages of justice arising out of this Bill if it becomes an Act. We know that miscarriages of justice tend to arise when there is a fear of terrorism or in terrorist cases. Regrettably, there are many examples of that in our fairly recent history, even when the criminal standard of proof was being applied. It must logically be the case that there will be more miscarriages of justice if the standard of proof is probability rather than reasonable certainty. Reasonable certainty is therefore preferable. The consequences in terms of the confidence of any community which may be affected by this Bill will depend on miscarriages of justice, which will happen, being kept to a minimum.

§Viscount Bledisloe
I have great sympathy with the amendment, which seems at first sight to be right. Perhaps the proponents of the group of amendments could explain to me how they resolve the following problem. As I understand it, the Government have resort to control orders only where they cannot bring a prosecution. They cannot bring a prosecution because they dare not reveal to the defendant the evidence that is before them because it is secret or will imperil their sources. If the defendant—as I shall continue to call him—cannot be told the evidence against him, how on earth can any court or any person ever be satisfied beyond reasonable doubt as, by definition, they cannot hear what the explanation of the accused persons is because he cannot behold the evidence?

So if you can make a control order only when you are satisfied beyond reasonable doubt, are you not in fact saying that you can never make a control order? 485 The defendant cannot be given the evidence against him. Therefore the court cannot know. There is a lingering doubt that it has the wrong bod and that if only he could be given all the information about him, he would be able to explain it away. I do not see the way out of that dilemma. Does not this apparently very sensible amendment defeat the whole purpose of the Bill?

§Lord Kingsland
This group of amendments essentially covers three issues. First, it covers the issue that has already been much debated about whether the burden of proof should be on a balance of probabilities or beyond reasonable doubt. Secondly, it covers the question of whether the appropriate test should be a judicial review test or a test on the merits, with the court looking at the Government's assertion that reasonable suspicion is justified. Thirdly, it covers the stage at which the Director of Public Prosecutions ought to intervene to give a view on whether a prosecution should be brought, perhaps making the control order procedure otiose.

I shall start with the last point, which we have already debated. It is crucial that every effort is made to ensure that the prospective subject of the control order can be prosecuted before the reluctant conclusion is reached that, despite the fact that prosecution is not possible, nevertheless the person must be subject to one or other of the restraints in Clause 1.

We believe that it is crucial that the Director of Public Prosecutions is brought in at the beginning, and that only when the director certifies that a prosecution is not possible can the control order procedure kick in.

There might be two reasons why the Director of Public Prosecutions reaches that conclusion. The first is when the alleged danger is not capable of falling within any definition of any crime on the statute book. The second is when, as the noble Viscount, Lord Bledisloe, said, it would be counter-productive to the national interest to reveal to the prospective subject of the control order either the source of the intelligence or the manner in which it had been garnered. In those circumstances, one must then reluctantly move to the control order procedure.

I am always extremely nervous about disagreeing with my noble friend Lord Carlisle of Bucklow and, perhaps even more so, with the noble Earl, Lord Onslow. Nevertheless, on this occasion the Opposition reached the conclusion that the balance of probabilities test is more appropriate than the beyond reasonable doubt test.

I can truncate my submissions by simply asking the Committee to recall the speech that has just been made by the noble Viscount, Lord Bledisloe. It is precisely for those reasons that it will be almost impossible to impose a control order if the judge is required to find that the case is established beyond reasonable doubt.

As the noble and learned Lord the Lord Chancellor said last Thursday, control orders are all about prevention. They prevent anticipated adverse action. In those circumstances the authorities are always in the 486 business of trying to assess risk. The people involved will already have been under surveillance for a long time, and there will come a point when imminent danger is perceived. At that moment the state will intervene.

The balance of probabilities test is a much more appropriate way to assess risk than a test of beyond reasonable doubt. I thought long and hard before reaching that conclusion. I do not like that conclusion, but if it is impossible to prosecute somebody who is about to do something very dangerous, we have to accept that the balance of probabilities test is the more appropriate.

I turn to the subject of my Amendment No. 52, which I shall not move in favour of the Liberal Democrat amendments which deal with the same matter. The Government do not have a case for asserting that non-derogating orders ought to be dealt with by judicial review, whereas derogating orders should be dealt with by a merits test. Both sets of orders ought to have the same test, and the judge should be entitled to go beyond the principles of judicial review, and look at the facts on which the Government base their allegation that somebody should be restrained.

I have another reason for saying that. How can the authorities know at the time they first seek an order whether it will contravene Article 5 of the convention? There is a range of possibilities in Clause 1(3). We do not know what combination of those forms of restraint the Government will go for, and the Government do not know what conclusion the judge will reach about the relationship with Article 5. Therefore, it is common sense that the procedure should be the same. To decide otherwise would not only be an inappropriate way of confronting the Article 5 issue, but would waste an enormous amount of everybody's time.

§Lord Campbell of Alloway
I agree with my noble friend. I shall be brief.

We are dealing with intelligaence, much of which comes from abroad by telephone and other means. When dealing with a mass of intelligence it is unlikely that you can be certain beyond all reasonable doubt whether there is a reason to make a prevention order.

Therefore, I, too, with regret, have to accept the logic of my noble friend Lord Kingsland. I think he is right. I do not see how the measure will work in practice if it is otherwise.

§Lord Goodhart
This is a large and extremely important group, which contains some very important amendments in our names, so it is necessary for me to speak to them now.

Our amendments in the group are Amendments Nos. 56 to 62, 73, 81 to 90 and 113 to 115. Except for Amendment No. 73, which deals with a minor point, all are amendments to government Amendments Nos. 55, 80 and 112. We hope to amend those government amendments, which we would then support, as amended by us. 487 The amendments have four purposes. The first, and perhaps the most important, is to ensure that all control orders are made by judges and not by the Home Secretary. The lead amendment on that is Amendment No. 56. That issue was originally raised in the debate on Thursday but not voted on then because we decided to concentrate votes today and tomorrow. If we succeed today, we shall have to sort out government Amendment No. 1 on Report. We had a full debate on the principle behind this issue on Thursday.

The Bill imposes serious restrictions on liberty which may amount to the actual deprivation of liberty in some cases. It is an essential principle that the Government make the laws about the restriction or deprivation of liberty but it is the courts that apply those laws to individual cases, unless there is a crisis so extreme that the Civil Contingencies Act has to be invoked. The Government have accepted the principle that the decision should he taken in individual cases by judges, not the Home Secretary, for derogating control orders, but not for non-derogating control orders.

We see no logical distinction between the two kinds of order for this purpose. The Government offer only judicial review for the non-derogating control orders. That is inadequate because the court is not making the order; the court can quash the order only if the procedure is defective or if the Home Secretary's decision is unreasonable. Indeed, judicial review would probably not meet the test of a fair trial under Article 6 of the European Convention on Human Rights which, we believe, will apply to control orders. That was a brief coverage, but in view of the full debate that we had on Thursday I propose to add nothing further.

3.30 p.m.

The second purpose of the amendments is to have a single procedure for all control orders. The lead amendment on that is Amendment No. 81. The Government's new clause, introduced by Amendment No. 80, introduces a new procedure, which we regard as broadly satisfactory, that applies only to the making of derogating control orders. We want to extend the new clause to non-derogating control orders as well.

Amendments Nos. 82 to 85 and 88 to 90 are consequential on that. They are not strictly consequential on the decision that all control orders should be made by a judge, because it would still be possible to have two different procedures, but pretty close to it. If all control orders are to be made by a judge, it is surely right that the same procedures should be followed for both derogating and non-derogating control orders. In particular, there must be an immediate preliminary hearing, as provided for by the new clause, with a temporary order made by a judge, followed by a full hearing and confirmation, or modification, or revocation, of the temporary order as may be appropriate. That is an essential supplement to the decision that all orders should be made by judges.

The third purpose of these amendments, and the one that I have found the most difficult of all, is to raise the standard of proof to the balance of probabilities. 488 The lead amendment on that is Amendment No. 58. I cannot see how anything less than the standard of balance of probabilities could justify the making of a control order. If someone, on the balance of probabilities, is involved in terrorist activities, it is reasonable to allow the courts to impose proportionate restrictions, falling short, at any rate, of deprivation of liberty.

As used in the Bill, "reasonable grounds for suspicion" is a weaker test than that of balance of probabilities. It seems plain that we cannot impose a control order on someone who may possibly be involved in terrorist activities but more likely than not is not involved in such activities. That would result in restrictions on the liberty of innocent people, and that is surely the quickest way to alienate the communities from which those people come. We should therefore have the standard of balance of probabilities as the minimum requirement before any control order can be made, not just derogating control orders.

We have very seriously considered the question whether there ought to be a higher standard, at any rate, for derogating control orders, and whether that standard should be basically equivalent to the criminal standard. If we had had more time to debate the matter, I would very much have wished to put it forward for debate; indeed, there is an amendment tabled in our name that would achieve that result. But one must look at where we are now. The Government have put us into a situation where we must move very quickly indeed. We recognise that there are arguments—those, for instance, put by the noble Viscount, Lord Bledisloe—for saying that the balance of probabilities should apply throughout.

The noble Lord, Lord Kingsland, has made it clear that the Conservative Front Bench does not support a proposal for a higher standard of proof on derogating orders or a standard of proof higher than that of the balance of probabilities. That being so—and I regret that it is the case—I believe that the appropriate course for us to take is not, on this occasion, to press for a higher standard than the balance of probabilities. I regret it, and I am sure that it will cause regret to many members of my own party, but the situation in which we have been placed by the Government—the extreme shortage of time—makes it inappropriate to press amendments on which it is unlikely that we will succeed. I hope that we will in due course have a further debate on a successor to this Bill, following a sunset clause, in which this issue can be redebated.

The fourth and final purpose of our amendments is to make it a requirement on the face of the Bill that no control order can be made where there is a realistic prospect of a successful prosecution. The arguments on that point were put very firmly by the noble Lord, Lord Kingsland, and I do not intend to add to them. It is plain that control orders should be orders of last resort and not of first resort. There are other very important issues in the Bill, which appear later in it and not in this group, such as due process, rule-making, and reviews and sunset clauses. Those will he reached in due course. Al the issues in this group were debated to a significant extent on Thursday. I hope that we will 489 be able to speak and vote on those issues relatively quickly and move on to the other important issues later in the Bill.

§Lord Judd
I do not want to be tedious on this matter. However, I hope that the noble Lord will forgive me for saying that what he has just said could be interpreted—it would be very ungenerous, I am sure—as possible equivocation. Could he make it absolutely, categorically clear that, speaking from the Liberal Democrat Front Bench, he believes that "beyond reasonable doubt" would be the appropriate terminology, and that it is simply because of time pressures and expediency that he is settling for the alternative?

§Lord Goodhart
As our amendments make clear, we believe that, in the circumstances that we now face, the balance of probabilities is the appropriate standard of proof for non-derogating control orders. We would have proposed and supported the higher standard of proof—in effect, the criminal standard of proof—for orders that amount, not to a restriction, but to a deprivation of liberty under Article 5. For the reasons that I have put forward, we do not intend to move such an amendment now, but my belief and that of my party is that that would be the appropriate standard of proof. If we get a chance to debate the Bill again, we will debate that issue separately and, no doubt, move to a separate vote.

§Lord Phillips of Sudbury
I support my noble friend and wish to make a single point. On the role of the court, under Amendment No. 56, which would replace that of the Home Secretary, I believe that the intensity of pressure on a Home Secretary in exercising the very wide powers under Clause 1, is almost unreasonable for him to have to bear unaided. I think that the public will take the view that the wider the powers given to the Home Secretary under Clause 1 the more he would be expected to exercise them in a way that relieved the public of risk from terrorist activities. That may be unfair but it is a reasonable supposition. Surely, that in turn will put the Home Secretary of the day under enormous strain to be cautious in exercising those powers—cautious, that is, in exercising them rather than in refraining from exercising them. He or she will say, "I have been given by Parliament these unprecedented, enormously wide powers, in the expectation that I will use them to prevent a terrorist attack". If, therefore, there was such an attack, he or she may well come under an unfair, yet very intense, public outrage that those powers had not been used.

To give the judges the responsibility of exercising those powers under the non-derogating control orders is not only to give more objectivity to the process—as, plainly, it will do—but also to lend a degree of protection to the Home Secretary of the day in relation to this extraordinary measure. For that reason alone, there must be the best sense in having the court replace the Home Secretary in the exercise of non-derogating control orders.

§Lord Clinton-Davis
I have great sympathy with the point which the noble Lord has just made. As the 490 Committee will know, I have expressed intense reservations before about this Bill. I speak as one who cares about civil liberties issues.

I beg my noble friends to take into account the report on the Bill which has just been issued by the Joint Committee on Human Rights. In every material particular, the committee has concluded that we ought to be very careful indeed about abandoning the principles which we cherish regarding human rights. The onus of proof weighs very heavily on my noble and learned friend in concluding that we ought to interfere with that provision in any way. I sympathise with those who express the view that there ought to be a provision that abandons, in all material particulars, the standard of proof which we require in criminal cases. I do so with some hesitation, but—for the reasons already adduced—we have no alternative to that conclusion.

It is not my natural bent to differ with my noble friends. I do so now only because I feel very strongly about the provisions we are considering. We have another occasion—tomorrow, and, I think, on Wednesday—on which to come to a different conclusion. I plead with my noble and learned friend to do precisely that. As I have said, I can see no difference between derogatory orders—I am sorry; I meant to say derogating orders—and non-derogating orders. I cannot see where common sense implies a difference between the two. My noble and learned friend will have to persuade me and many others that the course that he is apparently approving should be favoured by this House. I do not think that he will succeed.

§ 3.45 p.m.

§Lord Waddington
There are the strongest reasons for the role of the judge being the same in the case of non-derogating control orders as in the case of derogating control orders. I touched on this matter in an intervention last Thursday. I mention it again because the Committee is owed a fuller explanation of the objections to the point that I made.

Looking at the list in Clause 1(3), I submit that it is impossible to say with anything like complete certainty which orders or combination of orders will he found by the courts to involve an infringement of Article 5. If it had been possible to make that distinction with any certainty, I suspect that Clause 1(3) would have been drafted in an entirely different manner. One would have found a list in Clause 1 of the powers which would involve derogating control orders, while the exercise of other powers would involve only non-derogating control orders. It is wholly unrealistic, and storing up trouble for the Government, to say that the judges should have one role in the case of derogating control orders, but an entirely different role in the case of non-derogating control orders.

§Lord Monson
As a non-lawyer, perhaps I may ask the noble Lord, Lord Goodhart, whether it is not the case that, under recent legislation, if the police have reasonable grounds to believe that an individual may be planning to get involved in football-related disorder, that individual may have his passport removed, albeit on a 491 temporary basis, and be ordered to report to the police at specified times. There does not appear to be any need for proof that there is a balance of probabilities that the individual may get involved in football-related violence.

§Baroness Kennedy of The Shaws
Your Lordships know my position on the Bill. I think that it is wholly misconceived. I would not want to see orders being made on anything less than the criminal burden of proof. However, I shall support the amendments that have been tabled by the opposition parties, simply because they have to be better than the awfulness in the Bill. I would therefore urge Members of the Committee who are concerned about liberty to take the same course. When my noble and learned friend Lord Clinton-Davis—he is a learned friend, but I meant to say noble friend—accidentally referred to these as "derogatory" powers, he was perhaps using the right word.

As we come to a whole series of votes on such important issues, I should like to remind the House of a quote from Martin Luther King which I am sure is familiar to many on these Benches. He said: ‘On some positions, cowardice asks the question 'Is it safe?'. Expediency asks the question: 'Is it politic?'. And Vanity asks the question: 'Is it popular?'. But conscience asks the question 'Is it right?'. And there comes a time when one must take a position that is neither safe, nor politic, nor popular. But one must take it because it is right".’ That is what the Committee is being asked to do today. I hope that we will remember it as we are asked to go to the Lobbies.

§Lord Elton
I rise to remind noble Lords that the principal amendment is Amendment No. 56, which substitutes a court for the Secretary of State. I also remind noble Lords that it is not just the current Secretary of State, but all the Secretaries of State down the perspective of years for the duration of the Bill, if we do not add a sunset clause. With closer and closer co-operation between the police and Government, the idea of a politician being able to put people that they do not like in prison reminds one of the motto of the National Lottery: "It could be you".

§Lord Plant of Highfield
Like many other noble Lords I had a chance to speak on Thursday, so I shall be brief. However, since I am going to support the opposition amendment before us, I want to say a few words about my position. I am not opposed to control orders, but they have to be made as compliant as possible with our human rights legislation and with common law ideas of natural justice. These amendments go some way towards achieving that.

It is perfectly legitimate to restrict liberty for the sake of liberty, as the American philosopher John Rawls argued, or as Isaiah Berlin put it more poetically: freedom for the pike is death for the minnow. Sometimes we have to restrict liberty for the sake of liberty, but we should do so in a principled way that is consistent, so far as it possibly can be, with our existing human rights legislation.

492 Given that, the decision being made by a judge on an application from the Home Secretary is the right way around. I also agree with the argument put by the noble Lord, Lord Kingsland, about the Director of Public Prosecutions. I am very pleased that the Home Secretary has committed himself to the view set out in his evidence to the Joint Committee on Human Rights that, ‘prosecution followed by conviction is far and away by a long way the best … way of achieving what we want to do".’ However, once this Bill becomes an Act and is institutionalised, there is a danger of non-prosecution at a lower standard of proof becoming the default position. That would be a very had thing. So I am in favour of the argument about the role of the DPP.

On the burden of proof, as I explained to the noble Lord, Lord Carlisle of Bucklow, in the Cloakroom the other evening, I am as anxious about the standard of proof for derogation orders as for non-derogation ones because the test of "reasonable suspicion" seems far too low. Moreover, the point made by the right reverend Prelate that a much lower standard of proof in the form of reasonable suspicion might actually encourage the default position is one that I had not thought of.

For those reasons, I am keen on the idea of raising the standard of proof for non-derogating orders to the balance of probability and, as other noble Lords have pointed out, I see both types of order as similar in their effect on liberty. After all, my liberty is restricted when I am required to do what I would not otherwise do or required not to do what I otherwise would do. Non-derogating orders restrict my liberty in those respects in just the same way as derogating orders. So if the two kinds of orders are symmetrical, there ought to be the same standard of proof for both.

Although I am not unsympathetic to the view that the standard should be higher than the criminal standard, I thought that the point made by the noble Viscount, Lord Bledisloe, was very telling. Rather regretfully, therefore, I will support the idea of the balance of probabilities, but for both types of order.

§Lord Lester of Herne Hill
Since I was not able to be present for the Second Reading debate, I should like to make one or two brief points. First, I am no longer a member of the Joint Committee on Human Rights and therefore I am in a good position to say how pleased the House ought to be with the speed with which the committee has been able to produce not one, but two reports under great pressure of time. I am only sorry that that pressure of time has prevented the committee dealing with all the issues. It is plain that it had to concentrate on addressing only the most important, and I agree entirely with what has been reported.

Secondly, on the standard of proof, the great advantage of a standard based on probability is that the courts have made it quite clear that that is a flexible standard and that the more serious the interference with basic rights and freedoms, the higher the standard will be within the spectrum of probability. Therefore the great advantage of the standard of probability, if it 493 is adopted by the House, is that it will give the courts the necessary flexibility so that, for example, where a fairly serious control order is sought, they will no doubt require a higher standard of probability than they would for an order seeking minimal interference.

I continue to be puzzled by the Government's approach to judicial involvement. I cannot understand why, if a warrant is needed from a magistrate merely to search premises or papers—that is often a ritual, but it is an important safeguard—the Government have resisted the notion of a similar form of judicial control from the outset.

Last but not least, I have enormous respect for Sir John Stevens, the retiring Commissioner of the Metropolitan Police, but I very much regret the headline in yesterday's News of the World over an article: ‘Forget human rights … kick out the fanatics".’ Indeed, one or two passages in the piece surprised me, given my respect for Sir John. He suggested, for example, that the Law Lords had instructed that the Belmarsh detainees should be released immediately. That is just wrong because it was not within their remit. More importantly, however, he suggested that there is a human rights lobby that is somehow acting against the interests of the people of this country. I am sure that that is not the view of the Government.

§Lord Donaldson of Lymington
I strongly support the substitution of "court" for "Secretary of State". Earlier my noble and learned friend Lord Lloyd said that the only two equivalent quia timet preventative orders he had been able to find in civil proceedings were non-molestation orders and ASBOs. While I agree with him that they are many miles away from this, they are in fact a million miles away when we note that those two types of order are imposed by the courts. It is unique in civil proceedings for a Secretary of State to be able to proceed on his own and without hearing the views of the person to be subject to these control orders. All that is left to the person is the right to appeal. That is wholly unique.

I would add one cautionary word about using the courts to make the order. It ought to be a preliminary order, a temporary one subject always to the requirement to look at the merits of the case put by the person subject to it. By all means have a preliminary ruling without that requirement, but it must be followed almost immediately by a substantive investigation by the court.

Lastly, as has just been pointed out, it is absolutely right that the civil burden of proof is immensely flexible. The greater the seriousness of the allegation, and of course of the possible consequences, the greater care the court will take before it is satisfied on the balance of probabilities. Other considerations will enter into the balance.

Subject to those caveats, I am in complete support of the position.

§Lord Forsyth of Drumlean
I rise to make one brief point. I do not know if the Lord Chancellor had an opportunity to watch the BBC "Question Time" 494 programme last Thursday night. I ask that because the audience—admittedly a BBC audience—expressed pretty much universal astonishment at the provisions in this Bill. There is no time to go over all the arguments, but I wish to put one point to him in respect of the arguments that have now been put all around the House for treating derogating and non-derogating orders in the same way and subjecting them to the same tests and procedures.

No doubt the Government will get their Bill in the end, but laws need to carry consent. Just listening to the arguments being put forward in this House by experienced and knowledgeable lawyers, or by former Home Secretaries such as my noble friend Lord Waddington, or by noble Lords such as myself who cannot understand the distinction if you have a combination of non-derogating restrictions, how do we expect this to carry the consent of the country? If someone is told that they cannot go to their place of work, that they cannot go on holiday and that they cannot see their friends, and they are told, "You do not have these rights that would apply if it were a denial of liberty because all these restrictions are not a denial of liberty", that flies in the face of common sense. It will not be understood, it will not carry consent and it will be used by the very people whom Ministers are trying to undermine to whip up support for their cause. So I say this to the noble and learned Lord the Lord Chancellor: think about this proposal in practical terms. Consider what Rory Bremner would make of the provisions set out in Clause 3(2) and the argument that this is not a restriction on liberty, and how that would be interpreted in the country.

§ 4 p.m.

§Lord Lloyd of Berwick
Perhaps I may add just one or two sentences, in the light of an observation made by the noble Lord, Lord Phillips. He took me a bit by surprise when he said that he was supporting Amendment No. 56 because it would mean that the judge would be there "to protect", I think he said, the Secretary of State. That was the ground on which he was going to support the amendment. Exactly the opposite is true. Judges are not there to protect Secretaries of State. They are there to stand between Secretaries of State and the individuals, in case individuals happen to be innocent. That is not a ground on which we should support the amendment.

As Members of the Committee know, I am against control orders altogether. If there are to be control orders, whether made by judges or by Secretaries of State, I can see no answer to the argument that the same procedure ought to apply to both. On that I am entirely in agreement with the amendment, which is now supported on all sides.

§Lord Phillips of Sudbury
Perhaps I may briefly clarify my point in response to the noble and learned Lord. I was not seeking to protect the Home Secretary, 495 but to relieve the Home Secretary of a burden that is much more objectively undertaken by a judge. Forgive my inappropriate use of "protect".

§Lord Ackner
I would like to make it clear that I think that the House and the country have been rushed into a wholly unsatisfactory position. I appreciate that compromise has become essential, but that compromise is the product of a wholly unnecessary, rushed approach to a significant piece of legislation. I would therefore like to voice my unhappiness. Undue emphasis on speed has brought about the obligation to compromise some of our most serious and lasting values.

§Lord Judd
I declare an interest as a member of the Joint Committee on Human Rights.

In view of what has just been said, it would be proper to say that we have found ourselves in an immensely difficult situation. We, too, have felt that we are dealing with one of the most profound issues—absolutely central to our responsibilities—with which we have ever been asked to deal. We have found that the time constraints have made that task very difficult indeed. That is why we had no option in the end but to prioritise our discussion.

I should like to make three points. First, we would all agree, whatever our position, that there is not a perfect solution. We are going for the best possible available solution. I respect the argument, and certainly the quarters from which it comes, that the judge should not be put in the position of taking over political responsibility. However, when I look at statements by the Government, not least by the Prime Minister and Home Secretary, I think that they are to be commended for their candour. Both, it seems, have been at pains to say that they would not want to be accused by the public of not having done everything possible to protect the public.

That seems a very responsible political position, but that is precisely why they are not in the best position to judge what should he done with someone who has been apprehended and arrested. That is exactly why—because they have that responsibility. Arguably, that responsibility undermines their objectivity in this situation.

My second point is related to what the noble Lord, Lord Forsyth, said. I do not live my life in legal circles. I have been involved in community work. I am accustomed to community dynamics. What has always seemed crucial to me in the credibility of the administration of the law in our country, is that we take seriously the issue not only of justice being done, but of it being seen to be done. The difficulty is that in the present security situation it is not possible for it to be transparent all the time. That is why we should do everything possible, push as far as we responsibly can, to demonstrate that the proper processes have been followed and that cases have been carefully and objectively considered.

My last point is simply that I happen to believe that we are facing not only one of the greatest human rights issues with which we have ever been faced, but also one 496 of the most dangerous situations we have ever faced. I believe that history will never forgive us, in the pressure and acute nature of the danger we face, for doing things that prove counter-productive, historically, in winning the battle for hearts and minds.

We shall never be able to eliminate the possibility of terrorism. The best way, the only effective way, in which we shall be able to contain those dangers is to win the battle for hearts and minds. That is why objectivity, due legal processes and the rest are so important.

§Lord Desai
As a non-lawyer, I have been following this debate carefully. On Thursday I was persuaded that it was not good enough for a judge to replace the Secretary of State in giving orders. The noble and learned Lord, Lord Ackner, and many others said that judges were unhappy at being made to do the job of the Secretary of State. Then I thought that the noble and learned Lord, Lord Donaldson, had proposed a third way. I am now lost about what happened to the third way. The third way was a good way.

§The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)
This is an incredibly important debate. It follows on from the debate that we had on Thursday. The starting point of the debate and the first issue is whether noble Lords believe that something beyond surveillance and short of the criminal process is required. It is the view of the security services that it is, it is the view of the police that it is, it is the view of the committee of the noble Lord, Lord Newton, that it is. We think it is necessary in the face of the new threat that terrorism poses to this country.

I understand that the position of the Conservative Party and of the Liberal Democrat Party is that they too support the concept of something that is not a criminal process, some sort of court order that restricts the movement or activity of the subject and assists the fight against terrorism. We take the view strongly that that is required, but we do not take the view that that should be done by throwing civil liberties out the window. We think that it has to be done by balancing civil liberties against those requirements.

That is the starting point. If you accept that starting point, as the three Front Benches do, as the law-enforcement agencies do, as the independent bodies that have looked at it do, then I believe that the task for this House and another place is to seek to craft a solution that balances civil liberties against the need to protect the nation in a way, to pick up the words of the noble Lord, Lord Forsyth, that has common consent. That, I believe, is the work that we should be engaged upon.

This group of amendments raises four issues. First, should the court be involved first, before an order becomes effective, in relation to a non-derogating order? That is an order that does not deprive somebody of his liberty. 497 We say that is neither necessary nor appropriate for the following reasons. The judgment about whether security will be assisted by a non-derogating order is made by the Home Secretary in the first place; and then, in order to protect civil liberties, there must be proper judicial involvement. The Home Secretary will assess the risk to the nation and ask himself whether the intrusion on an individual's rights—and this is not about deprivation of liberty but about the individual's rights, for example, to associate with someone else or to be in contact with other people—is justified by that risk.

The Home Secretary makes the order in the first place and the arrangements then involve the matter coming before the court as quickly as possible. We need to consider whether the Bill should be amended to ensure that the matter comes before the court as quickly as possible. In applying a judicial review test, the court considers, on the basis of the evidence put before it, whether the risk that the Home Secretary has identified is such that it justifies the intrusion on to that individual's rights. In effect, it is asking whether the intrusion is justified by the risk identified by the Home Secretary.

That is a very sensible judicial way of looking at matters and is a perfectly possible task. It also makes absolutely clear the Home Secretary's role and the judge's role. There is clarity and protection. That is why we submit that, in relation to non-derogating orders, the Home Secretary should make the order in the first place and then, within a very short time indeed, the matter should come before the court. In relation to non-derogating orders, it should be clear that the Home Secretary makes the judgment, but subject to judicial control.

§Lord Forsyth of Drumlean
The point has been made many times—perhaps I am being thick—but I do not understand, and the Lord Chancellor has not really explained, how it is, for example, that, as he said at an earlier stage in the debate on this legislation, a curfew restriction would not be a deprivation of liberty.

If you are an ordinary mortal and not a lawyer, and you are told that you have to stay in a certain place and are not allowed to leave it, you think that is a deprivation of liberty. I understand that the Lord Chancellor is making a distinction between the provisions in the European convention, but ordinary mortals do not understand the distinction. It seems to be a deprivation of liberty if you are told that you cannot go to your place of work, that you cannot have certain people in your home and that you have to stay in your home at a certain time. People do not make a distinction between that and house arrest.

Does the Lord Chancellor see the point? Can he help me to understand why he says there is clarity in respect of derogation and non-derogation orders? For me, it is as clear as mud.

§Lord Falconer of Thoroton
We draw the line between the two because the European Convention on Human 498 Rights draws the line between the two. There needs to be a lawful basis—one selected not by the Government but by an accepted body of jurisprudence—as to why the distinction is drawn. It would not be enough for us to say, "We draw the line here but not there". Let us draw the line based on the European Convention on Human Rights, to which this country has signed up.

Of course it is possible to say that the connection between the lower end of the derogating order and the upper end of the non-derogating order might be close, but in practice there will be a very significant difference.

§Baroness Hayman
I thank my noble and learned friend for giving way. Is it not true that it is really difficult to find that distinction when my noble and learned friend has accepted that a combination of non-derogating orders might, even within the technical framework of the European convention, amount together to a deprivation of liberty? I recognise what he says about needing a legal basis, but we are in the process of creating that legal basis in UK law.

§Lord Falconer of Thoroton
If you said, "You cannot go out and see this person and you cannot go out and see that person; you have got to be in your house from six in the evening until midday the next morning", any sensible person would say that constitutes a deprivation of liberty even though it is taken from the Clause 1(3)(c) list identified by the noble Lord, Lord Forsyth. There will not be a great deal of difficulty in identifying what is or is not a deprivation of liberty.

The non-derogating orders intend to focus on matters such as reporting to the police a particular number of times a week and not seeing individual people. It is very important that we take an approach based in law rather than distinctions drawn simply for the purpose of the Bill.

§ 4.15 p.m.

§Lord Carlisle of Bucklow
To my mind, the Lord Chancellor has not answered the question raised by the noble Lord, Lord Forsyth. The noble and learned Lord said that we have to make a distinction because the distinction is clear in the convention itself. But Article 5 states that everyone has the right to liberty. On what basis is the Lord Chancellor saying that a curfew, or a refusal to allow someone to work somewhere or to go to different people's houses, is not a restriction of liberty?

§Lord Falconer of Thoroton
Under the jurisprudence of the European Convention on Human Rights it is not a deprivation of liberty. It might well constitute infringements of Articles 7 to 11 but, as I said during the debate on Thursday, that matter does not require a derogation and can be dealt with by the courts. We see as fundamentally different the deprivation of liberty that derogating orders could involve.

§The Earl of Onslow
When we passed the Terrorism Bill, the Lord Chancellor's colleagues were making 499 exactly the same noises about Part 4, saying that it was not against the Human Rights Act. Almost as night follows day, someone will go to the court and prove the Lord Chancellor wrong. What will happen then? Everyone else will have an enormous amount of pleasure in saying, "I told him so".

§Lord Falconer of Thoroton
The Bill provides that you can make a derogating order only if you have derogated from the convention. We are not derogating at the moment. If any order constitutes a deprivation of liberty, it will be struck down by the courts. So we are providing judicial protection against any deprivation of liberty.

I think the noble Lord, Lord Lester, should intervene first; then the noble Lord, Lord Brittan, and then my noble friend Lord Clinton-Davis.

§Lord Lester of Herne Hill
I am grateful to the noble and learned Lord the Lord Chancellor. I hope he will bear with me and my question because I do not understand the way in which he is reading the Bill on the key issue of judicial control.

Clause 1 (1) states that the Home Secretary—not a judge—will make the initial decision and that he will need to have reasonable grounds and consider it to be necessary. Under Clause 7, which deals with appeals, the role of the court is not in deciding whether the order was necessary but, under Clause 7(4), in whether the decision was flawed. Clause 7(7) states that, in doing so, the court has to apply the principles applied in a judicial review.

My understanding—I am interested to know whether the Lord Chancellor agrees with me—is that if you apply judicial review proceedings, the decision is not that of the court, as it would be with a "Spycatcher" injunction to restrain the distribution of government information in breach of a duty of loyalty by a disloyal agent, but of the Home Secretary. The power of what is called an "appeal" court is to be exercised, as I read it, only to see whether the Home Secretary's decision was flawed on the basis of legality, rationality and procedural propriety. That is not the same as the independent principle of proportionality, which the courts have not yet said is an independent principle.

Therefore, when the Lord Chancellor says, as he has done today and previously, that the court will decide whether the order was necessary, with respect, that is not right. The court will decide whether the Home Secretary's decision was flawed on the basis of judicial review principles. There is all the difference in the world between that and a police officer who believes there are reasonable grounds for suspicion and applies for a search warrant, or a government who, through the Attorney-General, apply for a "Spycatcher" injunction. In such cases, they will have reasonable grounds and go to a judge, and the judge will decide whether it is necessary. Am I right or wrong about that?

§Lord Falconer of Thoroton
I understand the question. The noble Lord is absolutely right that I said on Thursday in considering the "judicial review" basis that we propose in the Bill that it is our intention that the 500 court should be able to ask and answer whether there is a legitimate aim under the convention pursuant to which the non-derogating order is made and whether the obligations in the order are proportionate. I believe that we have got there already, but if we have not we will make amendments to achieve that end.

§Lord Brittan of Spennithorne
I hope that the noble and learned Lord the Lord Chancellor will accept that there is no greater supporter of the European convention than I; nor any greater admirer of the jurisprudence deriving from it. I hope that he will also accept that underlying my noble friend Lord Forsyth's argument is the belief that it is fundamentally misconceived to found a distinction on the question of compliance or otherwise with the convention between cases where we have to go under the more onerous—if we may call it that—procedure and cases where we go under the simpler procedure subject to judicial review.

If we are to have the public's consent, what matters between one procedure and the other is the gravity of the matter and not whether it is a breach of the convention. In the cases where the derogating orders apply we are talking about the deprivation of liberty; but on any view the kind of orders that can be made under the non-derogating category involve so substantial a curtailment of liberty that to the ordinary public there seems to be little difference between one and the other.

If that is the case, there is no reason why there should be a difference in procedure in applying the two orders and why what seems in ordinary legal principles—nothing to do with the convention—the more normal procedure of going to a court, presenting the evidence to the extent that it is possible to present it and asking for a view should not apply both to the deprivation of liberty and the substantial curtailment of liberty.

§Lord Falconer of Thoroton
I entirely accept that there is no wanner admirer of the jurisprudence of the ECHR than the noble Lord, Lord Brittan. I also agree entirely with what he says about the need for an understandable basis for which one can draw a distinction that can be popularly understood.

Any Article 5 infringing order will deprive someone of his liberty. It will mean that he is in practice restricted to his house for 24 hours or something akin to that. I believe that the public would be able to identify that the mainstream order—a non-derogating order—involves, for example, reporting to the police and not communicating with particular named individuals but does not involve deprivation of a person's liberty.

The noble Lord gave the example of a curfew. If he will think back to his days in the magistrates' court—which I am sure were a long time ago—he will remember that bail was often obtained by agreeing to a curfew. Did the subject of such an order think that he was being deprived of his liberty? I think that he was regarded as not being placed inside.

§Lord Clinton-Davis
If eventually the Committee comes to the conclusion that there is no difference between derogating and non-derogating orders, will the 501 Government still insist on occupying the stance recommended by my noble and learned friend? Will they go to the wall on the issue?

§Lord Falconer of Thoroton
I have put my arguments in relation to the distinction between derogating and non-derogating orders. For reasons that I am almost completely unable to understand I find no support for my arguments in the Committee. It is for the Committee to decide whether it agrees or disagrees with my arguments.

§Lord Neill of Bladen
On Second Reading I gave the example of an order that deprived someone of their right to work: he had only one place where he could work; he was ordered not to go to work; and his passport was removed by another part of the order. In ordinary parlance the ordinary man would say that he had been deprived of his liberty substantially: he cannot carry out his work and he is really a captive.

What is the point in running the risk of starting that—as we would—by a procedure where the Minister makes an order instead of saying that all orders should be made by a judge? We would thereby eliminate the risk of making orders that turn out to be derogating orders. It does not make any sense.

§Lord Falconer of Thoroton
I am interested in the noble Lord's example. There are people who come to this country legitimately who are legitimately prevented from working. I wonder whether they would regard themselves—as the noble Lord says they would in common parlance—as deprived of their liberty. I do not think that they would. Other rights under Articles 7 to 11 of the European Convention on Human Rights would be infringed, but under our proposals the court is able to weigh up the risk that they pose against intrusion in relation to their rights.

§Lord Donaldson of Lymington
May I take the noble and learned Lord the Lord Chancellor back to the point of judicial control by means of judicial review? I am not boasting, but I have probably presided over a divisional court for longer than anyone in the Committee, because I did it for nine months. It was concerned mostly not with Home Secretaries or central government, but with local government: with problems such as whether proper priority was being given to particular classes of people seeking housing.

It was by no means unusual for my colleagues and me in the court to conclude that we would never have done something but that it was within the scope of the local authority. That is a weak form of control.

§Lord Falconer of Thoroton
There is probably no one in the Committee who has presided more often over divisional courts than the noble and learned Lord, Lord Donaldson. The question of how the ECHR is played into this is a matter for the legislation. As I made it clear on Thursday, the courts would be able to 502 consider both proportionality and whether there was a legitimate aim that justified the order. They are always able to make that balance.

§Lord Maclennan of Rogart
Before the noble and learned Lord the Lord Chancellor sits down, does he understand the difficulty that some of us face in following the distinction he makes between derogating and non-derogating orders? Although some of the proposed orders may not appear to affect freedoms guaranteed under Article 5 they appear to affect other freedoms protected by the convention: Article 10 on freedom of speech and Article 11 on freedom of association and the property freedoms, which would be interfered with most severely. How can that distinction seriously be drawn?

§Lord Falconer of Thoroton
I accept completely that they could engage the other articles and infringe prima facie those other articles; but those are qualified rights. No derogation is required to engage or infringe them so long as there is a legitimate aim pursuant to which they are infringed and proportionate steps are taken.

What am saying is that the courts have to judge that, not this House. As a result, setting up a judicial arrangement whereby the court can consider the matter provides the protection that the citizen requires.

§ 4.30 p.m.

§Lord Maclennan of Rogart
I am most grateful to the noble and learned Lord the Lord Chancellor for attempting to answer my difficulties. However, is not Article 5 also a qualified right, so there is no distinction to be drawn in that way?

On a wider question on the whole approach, how will it be possible for the courts to he provided with the means to make the judgment that the noble and learned Lord proposes that they should be permitted to make? As the courts are to he deprived of the evidence that might be advanced by those against whom the orders are directed—if they themselves know the substance of the evidence that they have to rebut—is it not more likely that they will be faced with the task of rubber stamping?

§Lord Falconer of Thoroton
No, the courts would have access to all the evidence. The issue in such cases is not whether the court has access to the evidence, but whether the citizen who makes the application sees all the material. That is the reason for the special advocate procedure. So the court would have sufficient material to judge whether there was a legitimate aim against which the order had been made, whether the steps were proportionate and what was the level of risk.

§Baroness Kennedy of The Shaws
Has the noble and learned Lord the Lord Chancellor—a Labour Lord Chancellor—noticed that among the critics of this Bill are a former Home Secretary on the Opposition Benches and members of the judiciary, such as the noble and learned Lord, Lord Donaldson, none of whom could be considered lily-livered liberals? Has he 503 noticed that they are critics of what he is proposing to the House and that they are concerned by the illiberality of the legislation?

§Lord Falconer of Thoroton
We have to do what we think is right. We think that it is right to seek to strike a balance between protecting people from terrorism and, at the same time, preserving people's civil liberties. I have noticed the widespread expression of views. As someone said to me the other day, "It is a pretty pass when the headline in the Morning Star reads 'Back the Law Lords'". That is an odd grouping.

§Baroness Ludford
I was not present at Second Reading as I was fulfilling other duties. However, have I understood correctly that the noble and learned Lord the Lord Chancellor is to table another amendment to institute what he said about the scope of appeal and bringing in proportionality? As I understand it, there is only the judicial review standard on the face of the Bill. Secondly, the importance of what is happening here this week will echo around Europe. We are talking about the European Convention on Human Rights and what we enact into UK law will be watched very closely in the rest of Europe.

§Lord Falconer of Thoroton
I believe that that is entirely right. On the point made by the noble Lord, Lord Lester, I believe that that is already in the Bill. However, I want to make it clear that, in relation to a non-derogating order, the court can consider that proportionality is a legitimate aim in relation to the convention, as I said on Thursday. If that is not in the Bill, the Bill will be amended to achieve that aim.

I turn to the involvement of the DPP, which we discussed on Thursday. The position of the Government is that a control order should be sought only where a prosecution is not possible. We submit that it is not appropriate to put the DPP on the face of the Bill, as proposed, but we give a clear undertaking that, before any application is sought, the Home Secretary will have satisfied himself that prosecution is not a possible alternative.

§Lord Elton
The noble and learned Lord can take that position only for the present Government. I return to my earlier point: we are legislating for the future, unless we have a sunset clause.

§Lord Falconer of Thoroton
I respectfully submit that that position is one that any sensible government would take in relation to these orders. When considering whether a matter is proportionate, the court would be able to say that it would not be proportionate if prosecution were possible. So in practice the court would have to see material and ask, "Why don't you prosecute?", and if there were no satisfactory answer, it would not be a proportionate order.

I turn to the most important issue, which is burden of proof. Control orders, as the noble Lord, Lord Kingsland, said, are preventive orders. They are designed to prevent atrocities happening in future. They are not designed to punish a person for past 504 events. They require an assessment of the overall security situation, of the risks posed by particular individuals and of what measures, from a potentially wide range, are necessary and appropriate to meet those risks. The assessment must be carried out on the basis of a wide range of complex intelligence material and would involve inferences and evaluations being made in relation to matters affecting national security.

For those reasons it is not an area where the Secretary of State or the court will deal with proof of issues of fact. Essentially it is an exercise in risk assessment and evaluation of intelligence material.

§The Earl of Onslow
If the Home Secretary thinks that Mohammed al-Smith wants to do, or is planning to do, something, and he has talked to others about doing something nasty, can the noble and learned Lord explain why that is not conspiracy? If it is only one man dreaming, the Home Secretary cannot possibly get inside his mind. If there is evidence that someone wants to do something very nasty, I do not understand how he has not, by the very nature of the situation, committed a criminal offence or a common law offence of conspiracy.

§Lord Falconer of Thoroton
There are two problems with that. On the previous occasion I gave the following example: if a foreign intelligence organisation has arrested someone, interrogated him and acquired information, that information will almost certainly not be available to an English court, but it might be regarded by sensible people as reliable. Secondly, there may be information that does not constitute the high standard of proof that is required in a criminal court, but, quite legitimately, it may give rise to a particular risk. Thirdly, someone could be preparing for a terrorist act which does not constitute a criminal offence at the moment but, legitimately, it gives rise to a possible risk. Those are three areas where control orders could provide practical assistance but where prosecution would not be possible.

On the burden of proof, I shall deal first with non-derogating orders as opposed to derogating orders. In relation to non-derogating orders, having reasonable grounds to suspect that an individual is or has been involved in terrorism-related activities is just one part of the overall assessment of the risk posed by the individual and the measures necessary to meet that risk. That is the first part of a two-pronged test in relation to a non-derogating order.

The courts have recognised in very similar contexts that that is an appropriate test to apply. In the case of Rehman, which concerned a deportation order on the ground that it would be conducive to the public good in the interests of national security, the noble and learned Lord, Lord Hope, said: ‘the whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant's conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to 505 justify the appellant's deportation cannot he answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take account of probability of prejudice to national security but also the importance of the security interests at stake and the serious consequences of deportation for the deportee".’

The noble and learned Lord, Lord Hope, is saying that conventional burdens of proof issues are not appropriate in considering this matter. The reasonable suspicion test is the appropriate one.

I shall give way to the noble Lord, Lord Lester of Herne Hill, in two minutes, but perhaps I can complete my line of argument.

In effect, Lord Justice Laws, in a subsequent case in the Court of Appeal, thoroughly endorsed the Rehman approach and said what, in effect, I am saying, which is that this is about evaluating risk and identifying preventive orders that are consistent with people's human rights, but provide appropriate protection for the rest of the public in relation to it. In both those cases, the judges said, rejecting arguments made by counsel, that there should be some conventional standard of proof, and that reasonable suspicion was an appropriate level of proof. We accept that reasoning in relation to non-derogating orders. However, because a derogating order deprives someone of their liberty, we impose a higher standard—namely, balance of probabilities—which we recognise would make the granting of orders in those circumstances very difficult indeed. As people are deprived of their liberty by derogating orders, we take a different stance on them.

Finally, I shall quote what Lord Justice Laws said about the argument that a burden of proof like balance of probabilities should be inserted. He said: ‘Accordingly a requirement of proof will frustrate the policy and objects of the Act … the target of the Act's policy includes those who belong to loose, amorphous, unorganised groups … the choice is apt to strike the target. Proof would not be".’ That is the distinction that has been drawn.

Noble Lords have a choice as to whether, in the light of what Lord Justice Laws has said, and having heard all the arguments, that balance of probabilities is the right course. If your Lordships conclude that it is, as Lord Justice Laws said, you will go a long way to frustrating the purpose of the control orders. We come back to where we started from. Do noble Lords think that we need something apart from the criminal process and surveillance? We believe—and we are told as much by the security services and the police—that we do.

§Lord Lester of Herne Hill
I intervene because I am now hopelessly bewildered by what I have just heard. I thought the noble and learned Lord the Lord Chancellor said a little while ago that the court would effectively be in the same position as the Strasbourg court; that is, it would look at the necessity and proportionality of a restriction on a fundamental right or freedom. That is what I thought he said, and he nods.

506 If that is so, will he agree with me that, because the order has an impact on a fundamental convention civil right, the burden is upon the state to justify the interference? That is standard. We know from Strasbourg that the exception must be strictly construed. The burden of proof is therefore on the Home Secretary, and the standard of proof—whether one calls it "probability" or otherwise—must provide sufficient cogent and convincing evidence to justify the interference. Quoting Sir John Laws on other matters is not central to the point here, which is that the burden is upon the Home Secretary to justify according to proportionality, and he must do so by cogent and convincing rebuttal evidence.

§Lord Falconer of Thoroton
No, that is completely wrong. The test is, "What is the risk?". We are talking about—convention rights are engaged here—the level of risk for the future, which cannot be proved by conventional burdens. If the degree of risk is sufficient, the steps that can be taken can be justified. There is no difficulty in asking oneself, "Is the risk shown by the Secretary of State"—and he has to show that risk—"such that the steps he has taken are proportionate and justified'?".

§Lord Brittan of Spennithorne
The noble and learned Lord the Lord Chancellor has cited judicial authorities and general arguments in favour of the proposition that, when risk is being considered, the burden of proof is an irrelevant and improper consideration. If that is so, on what grounds of principle—as opposed to political expediency. which may be convenient for us—does he then introduce the concept of the balance of probabilities in the most serious cases, where he wishes to take the most draconian measures?

§Lord Falconer of Thoroton
Because they are the most serious cases, and because depriving someone of their liberty, which requires a derogation from the European convention—of which the noble Lord has said that he is second to none in his admiration—requires a special step to be taken. That is the view we take, which is why we have introduced this additional measure.

§Lord Brittan of Spennithorne
It is not just a question of a "special step". A moment ago, the noble and learned Lord was arguing that the whole question of risk was completely divorced from the question of the balance of probabilities. Whether or not it is a special consideration, it is an illogical step to be producing, even though it may be politically convenient. Surely the right step is to accept the argument of the balance of probabilities for both types of order.

§Lord Falconer of Thoroton
No. I respectfully submit to the Committee that we must recognise that the further up the spectrum we go, the more both the judicial protections, and therefore the protections of the citizen, need to be. That is the argument why we must insert a very high hurdle before we deprive someone of their liberty, and that is entirely appropriate. 507 I have dealt with the four critical points. I would only weary the Committee by going on and on. I submit, in those circumstances, that noble Lords agree to the Government's amendments that I described before, and not move their own amendments.

§ 4.45 p.m.

§The Lord Bishop of Chester
I do not wish to extend things unnecessarily, but can I press the noble and learned Lord the Lord Chancellor to say a little more about what the test of balance of probabilities actually means? He has just told us that it will be "very difficult" to get an order on the balance of probabilities. To a lay person like myself, that balance could be 51 per cent one way and 49 per cent the other, which sounds different from being "very difficult".

The noble Lord, Lord Lester of Herne Hill, picked up on something I said in my earlier contribution, saying that the civil courts were used to a flexible application of the balance of probabilities, so that if you intend to make a control order to deprive someone of their liberty, you am not that far from the criminal standard—bearing in mind the technical difficulties with that, as we heard earlier. Can my noble and learned friend confirm to us that his understanding is the same as that of the noble Lord, Lord Lester of Herne Hill?

§Lord Falconer of Thoroton
Regarding the balance of probabilities, the test is defined as whether it is more likely than not that the suspect is or has been a terrorist. The courts have said in other contexts that the more serious the allegation you make against someone, the more you have to prove it is more likely than not that they are a terrorist. A very serious allegation is being made, and it is for the court to determine how they would construe it. The flexibility means that the standard of proof can go not down but, rather, goes up. If the right reverend Prelate was wondering whether, in these circumstances, the balance of probabilities is closer to "beyond reasonable doubt" than it would be in other cases. I cannot say so for certain, but that would be the trend.

§Lord Forsyth of Drumlean
Before the noble and learned Lord the Lord Chancellor sits down, and while he is in the mode of helping laymen, I will just return to the point about the curfew, where someone is prevented from going out at certain times.

I do not want to repeat that point, but if the test is not to be balance of probabilities, and if that balance means that it is more likely than not, surely that cannot mean that the Home Secretary, faced with a situation where he was not certain that it was more likely than not—perhaps it was more unlikely than likely—would still be able to proceed with these serious restrictions on people's movements and ability to do their job. Someone could lose their job and their right to move freely about on the basis of a test where the Home Secretary could not hold that it was more likely than not. That seems strange to a layman.

§Lord Falconer of Thoroton
It is for the Committee to decide whether it is "strange" that, if the Home 508 Secretary thinks there are reasonable grounds to suspect that someone is a terrorist, preventing him associating with X or working in a particular place is necessary to protect the public from terrorism. Those are the two tests in the Bill, and that seems to be a perfectly proportionate approach to take.

§Lord Carlisle of Bucklow
When I rose to my feet an hour and forty minutes ago to move a modest amendment of a few words, changing the burden of proof in one area of the Bill, I did not realise it was going to lead to such a wide-ranging debate. Much of that debate has not even referred to the burden of proof on which my amendment was based, but has gone on instead to the whole issue of whether those orders that require derogation and those that do not should nevertheless be dealt with in the same way. I had thought that that would be the effect of the first amendment in the next group, which I tabled, but as we have obviously had the debate on both of them, I will merely say on that issue that the noble and learned Lord the Lord Chancellor's explanations are wholly unimpressive.

My noble friend Lord Forsyth is right. The idea that the man in the street will look upon an order that prevents him working, or that requires a curfew to be imposed on him, as in some way not being an interference with his liberty that justifies derogation, is nonsense. The overwhelming argument has been that we should deal with all these matters in the same way judicially.

I have accepted, as I have done every time I have spoken during these debates, that there is a group of terrorist cases where one knows that people are a danger to this country but it is impossible for them to have a fair trial as the evidence and its sources cannot be disclosed without damage to the state as a whole. I was delighted to hear my noble friend Lord Kingsland say that the Opposition were proposing to stand by the principle that before any of these orders come into force, there should be some system by which the director or some other body should be satisfied, having looked at the case, that no normal trial can take place. All I was saying in the amendment was, that having been done, if the Secretary of State is satisfied that a person is or has been involved in terrorism, that is a matter on which he should have been satisfied beyond reasonable doubt rather than on the balance of probabilities. With great respect, I do not accept the argument of the noble Viscount, Lord Bledisloe, and those who have said that merely because you cannot provide a defendant with the sources of the case against him or, indeed, give him the evidence against him, it does not prevent you being able to be satisfied beyond reasonable doubt whether he is or is not involved in terrorist activity.

These issues have been debated several times. I stick to my view that the criminal standard of proof is right. I hear what others say; I hear the many views expressed by other people; and I do not propose to press the amendment to a Division at this stage, as my noble friend Lord Kingsland will be glad to know. I indicated last week that I would not do so, and I do not propose 509 to. However, I propose to see what has been said during this debate, and I do not promise that we will not come back to it on Report. But for the moment, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 48 to 54 not moved.]

§ Clause 2 negatived.

§ Clause 3 [Duration and renewal of non-derogating control orders]:

§Baroness Scotland of Asthal moved Amendment No. 55: ‘Page 4, line 36, at beginning insert—’‘(A1) The Secretary of State may make a control order against an individual if he ’
‘(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.
’‘(A2) The Secretary of State may make a control order against an individual who is for the time being bound by a control order made by the court only if he does so (a) after the court has determined that its order should be revoked; but
(b) while the effect of the revocation has been postponed for the purpose of giving the Secretary of State an opportunity to decide whether to exercise his own powers to make a control order against the individual.
’‘(A3) A control order made by the Secretary of State is called a non-derogating control order.’

§ he noble Lord said: This is minor and consequential amendment to which I have already spoken. I beg to move.

§ On Question, amendment agreed to.

§Lord Goodhart
moved, as amendment to Amendment No. 55, Amendment Nos. 58 and 59: ‘Line 4, leave out "has reasonable grounds for suspecting" and insert "is satisfield on the balance of probilities’‘Line 8, at end insert"; and “(c) has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity.”’

The noble Lord said: This is a consequential amendment on the removal of the Secretary of State's powers to make control orders. I beg to move.

On Question, amendment agreed to.

[Amendment No. 62 not moved.]

Amendment No. 55, as amended, agreed to.

The Deputy Chairman of Committees (Lord Carter)
If Amendment No. 63 is agreed to, I cannot call Amendments Nos. 64 to 79 on the ground of pre-emption.
513
§The Earl of Onslow moved Amendment No. 63: ‘Page 4, line 36, leave out subsections (1) to (5) and insert—’‘( ) The High Court will set the limit of all non-derogating control orders.’

§ The noble Earl said: The only point that I make about this amendment is a very simple one; namely, that when the Home Secretary thinks that someone has done something wrong—the mythical Mahommed al-Smith—the judge has to say how long he will stay inside or how long the order not to visit his friends will apply. In other words, a term is set upon his punishment. Noble Lords will probably say that it is not punishment, but to him it will be punishment. It surely must go against all principles of justice, freedom and reason that someone can simply be locked up or deprived of or restricted of his liberty for an indefinite period. To me that is completely unsatisfactory. I beg to move.

§Lord Kingsland
I should like to say very briefly in support of my noble friend Lord Onslow that, listed with Amendment No. 63, is Amendment No. 93, which goes even further than Amendment No. 63. It would require the High Court to set the limit on all derogating control orders. When we come to Amendment No. 93, if the Committee is inclined to vote, it seems to me that that amendment of my noble friend Lord Onslow is perhaps preferable to the one that the noble Lord has just moved.

§The Earl of Onslow
I am totally at the convenience of the Committee. I do not know whether the Committee would like to discuss Amendments Nos. 63 and 93 together as a principle. I accept that Amendment No. 93 goes further than Amendment No. 63 but the principle is in effect the same, which is that the amount of time that an order applies to someone should be set by a judge and for a defined period. I do not know whether the Committee would like to discuss Amendment No. 93 now or when we reach it. I am completely at the disposal of the Committee.

§ 5.15 p.m.

§Baroness Scotland of Asthal
Amendments Nos. 63 and 93 are grouped. Therefore, I respectfully suggest that it makes sense for me to respond to the amendment moved by the noble Earl, Lord Onslow, bearing in mind that no other Member of the Committee has risen in that regard.

Noble Lords
Oh!

§Baroness Scotland of Asthal
How could I have not noticed the noble Lord, Lord Kingsland? I humbly beg his pardon. I meant no other Member of the Committee than a Front Bench Member. I tend to be dismissive of both our Front Benches as not really being the true contributors to a debate until a Member of the Back Benches rises.

The time frame which was given for both these orders accepts the reality that it is likely that they would have to be in being for some time. Bearing in mind the nature of the behaviour which is contemplated, it would be reasonable to suppose that a period of six months or 12 months would not be an unreasonable period, 514 particularly bearing in mind that it would be open to the person against whom such an order was made to make application on the basis of any change in circumstance. We accepted that if these control orders were made, they should not be open-ended. The time limits that we have set out of six months and 12 months would appear to be the most reasonable in all the circumstances.

§The Earl of Onslow
But still it is open to the Minister to allow the person to whom the control order is applied not to know the overall length of how long he is being either deprived of or having his liberty limited. That cannot be right. It is what double jeopardy was put into place to stop—allowing people to go on playing what I believe used to be called "cat and mouse" orders in Ireland; that is, locking people up, then releasing them, then locking them up again, then releasing them and then locking them up. It is quite unsatisfactory. However, there is so much which is unsatisfactory about this Bill that I suppose it is asking too much to try to get one small part put right. I note that not many other Members of the Committee wanted to speak to this amendment. However, I see that someone now wishes to do so and therefore I shall sit down.

§Lord Tebbit
I am grateful to my noble friend. I have every sympathy with what he is aiming at but I wonder about the practicalities of the matter. What circumstances would change to make it safe—if it had been unsafe—to let such an individual who had an order made against him out on to the streets again? For example, according to the Irish justice Minister, who is a significant figure, Mr Adams and Mr McGuinness are members of the Army Council of the IRA. I should have thought that would give rise to reasonable grounds for suspicion that they were associated with terrorist activities. If the Irish Minister is right, that has been the case for many years. Presumably, one would not want just to take them in for a few months and then let them back out on to the streets again, where, according to the Irish justice Minister—we do not know about these things—they might be involved in plotting anything from a murder to a bank robbery. Therefore, my noble friend might wonder whether he is absolutely right on this occasion.

§The Earl of Onslow
I shall have a very small bet with my noble friend Lord Tebbit that the one thing that the Government will not do is put a derogation order or a non-derogation order on anyone who they think might have the slightest connection whatever with the Irish situation. That is another reason why this Bill seems to me a bad Bill in that it will be used extremely selectively against people who are considered weak enough to have these draconian rules applied to them. However, having said what I have said, I beg leave to withdraw the amendment.

§ This amendment is similar to the one just moved by my noble friend Lord Onslow but seeks to ensure that a non-derogating control order has effect for a maximum period of 12 months.

§ The Explanatory Notes accompanying the Bill make it clear that the intention is that the control orders will be tailored to the particular risk posed by the individual concerned. The risk in some cases will be greater than in others and presumably last for different periods of time. To ensure that the orders are proportionate, the Law Society of Scotland suggests that consideration should be given to the length of time it is considered necessary to have an order in existence to meet the risk posed by the individual. It may not be necessary to have all orders lasting for the full period of 12 months. This amendment allows for this degree of flexibility.

§ Amendment No. 96 probes the relationship between Clause 4(2) and Clause 4(1)(c) of the Bill. These concern the duration of derogating control orders. Clause 4(1)(c) states that a derogating control order cannot be renewed. However, Clause 4(2) then provides that the Secretary of State can make a new control order to the same effect for a further period of six months on the basis of the same information upon which the original order was founded. This would appear to have the same effect as a renewal order. This amendment therefore probes the relationship between these two provisions. I beg to move.

§Baroness Scotland of Asthal
In relation to these amendments I would like to reiterate the comments I made in relation to the previous group of amendments and add to them. The Secretary of State can revoke, or apply to the court to revoke, a control order at any time if it ceases to be necessary, or he may modify, or seek modification of, any of the obligations imposed. It is open to the subject of the order to apply at any time to the Secretary of State, or to court, as the case may be, for a revocation of the order or for conditions to be varied, if he believes that circumstances have changed. Given the ongoing, active monitoring that will be involved in control orders, we do not believe that a modification to the drafting in the way suggested by the amendment is necessary. Furthermore, it would be likely to hinder optimal operational effectiveness.

I understand that Amendment No. 96 is a probing amendment. It prevents the making of a new derogating control order after the period specified for the first order expires. It also prevents the Home Secretary making a new derogating control order once the period of the first order has expired. In my earlier remarks, I made clear that we think that it is important for each control order to be for an identifiable, limited period, notwithstanding the fact that we will be reviewing the situation on a continuous basis. It would significantly undermine the effectiveness of the control order scheme if it were not possible for derogating control orders to continue. in appropriate cases, after the initial periods for which they are imposed.

516 By definition, the derogating control orders would be imposed on those thought to pose the gravest threats to public safety. It is right that such severe measures should be kept under close review and the need for them should be reassessed carefully every six months. It is possible—as has been the case with some of the current detainees—that the risk an individual poses can diminish over time. In that event, when looking at an order for which derogation has been needed, it might be appropriate to contemplate restrictions falling short of a deprivation of liberty. If nothing had changed over a six month period and yet the risk posed by the individual was the same as when the Home Secretary, or, as the case may now be, the court, had deemed it appropriate to impose such stringent controls, it would be irresponsible not to have the means to continue to assure the public that it was still safe.

This is about ensuring certainty of time span, making sure that orders are reviewed properly and giving the relevant parties an opportunity to raise additional matters for revocation in relation to those orders. The two fit together.

§Baroness Williams of Crosby
In a situation where evidence emerges well before the six-month review that throws doubt on the evidence on which the control order was made, do the Government have in mind any provision that would enable a rapid review of that case to take place? Clearly, there could be indications that the original evidence was unsound.

§Baroness Scotland of Asthal
That is why I said that there would be a review of the situation and that the Home Secretary could revoke the order before it expired, or application could be made to the court, now that we have passed Amendment No. 56, indicating that there had been a change of circumstances that merited such a revocation or the amendment of certain of the conditions. It may be that conditions change and indicate that some of the limitations, or restrictions imposed by way of conditions, are no longer merited. The idea is to have the certainty of an initial period of six or 12 months and then allowing flexibility for revocation because of change of circumstances.

§The Duke of Montrose
I thank the Minister for that explanation. As I understand it, the provision in Clause 4(1)(c)—that the derogating control order may not be renewed—means that the order may not be rolled forward, but that a new order must be brought in. In the light of that, I beg leave to withdraw the amendment.

§Baroness Scotland of Asthal moved Amendment No. 79: ‘Page 5, line 12, at end insert—’‘( ) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate.’

§Baroness Scotland of Asthal
I beg to move.

The Deputy Chairman of Committees
The Question is that Amendment No. 79 shall be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". Clear the Bar.

Division called.

Tellers for the Contents have not been appointed pursuant to Standing Order 54. A Division therefore cannot take place, and I declare that the "Not-Contents" have it.

§ Amendment negatived.

§ Clause 3 agreed to.

§ 5.30 p.m.

§Baroness Scotland of Asthal moved Amendment No. 80:

‘After Clause 3, insert the following new clause—’

§"POWER OF COURT TO MAKE DEROGATING CONTROL ORDERS

§ (1) On an application to the court by the Secretary of State for the making of a control order against an individual, it shall be the duty of the court—
(a) to hold an immediate preliminary hearing to determine whether to make a control order imposing obligations that are or include derogating obligations (called a "derogating control order") against that individual; and
(b) if it does make such an order against that individual, to give directions for the holding of a full hearing to determine whether to confirm the order (with or without modifications).

518
§ (2) The preliminary hearing under subsection (1)(a) may be held—
(a) in the absence of the individual in question;
(b) without his having had notice of the application for the order; and
(c) without his having been given an opportunity (if he was aware of the application) of making any representations to the court;

§ but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to that hearing.

§ (3) At the preliminary hearing, the court may make a control order against the individual in question if it appears to the court—
(a) that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity;
(b) that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism;
(c) that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and
(d) that the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.

§ (4) The obligations that may be imposed by a derogating control order in the period between—
(a) the time when the order is made, and
(b) the time when a final determination is made by the court whether to confirm it,

§ include any obligations which the court has reasonable grounds for considering are necessary as mentioned in section 1(1C).

§ (5) At the full hearing under subsection (1)(b), the court may—
(a) confirm the control order made by the court; or
(b) revoke the order;

§ and where the court revokes the order, it may (if it thinks fit) direct that this Act is to have effect as if the order had been quashed.

§ (6) In confirming a control order, the court—
(a) may modify the obligations imposed by the order: and
(b) where a modification made by the court removes an obligation, may (if it thinks fit) direct that this Act is to have effect as if the removed obligation had been quashed.

§ (7) At the full hearing, the court may confirm the control order (with or without modifications) only if—
(a) it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity;
(b) it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism;
(c) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and
(d) the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.

519
§ (8) A derogating control order ceases to have effect at the end of the period of 6 months beginning with the day on which it is made unless—
(a) it is previously revoked (whether at the hearing under subsection (1)(b) or otherwise under this Act);
(b) it ceases to have effect tinder clause 4; or
(c) it is renewed.

§ (9) The court, on an application by the Secretary of State, may renew a derogating control order (with or without modifications) for a period of 6 months from whichever is the earlier of—
(a) the time when the order would otherwise have ceased to have effect; and
(b) the beginning of the seventh day after the date of renewal.

§ (10) The power of the court to renew a derogating control order is exercisable on as many occasions as the court thinks fit; but, on each occasion, it is exercisable only if—
(a) the court considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for a derogating control order to continue in force against the controlled person:
(b) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention;
(c) the derogating obligations that the court considers should continue in force are of a description that continues to be set out for the purposes of the designated derogation in the designation order; and
(d) the court considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity.

§ (11) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the court, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters in relation to which the requirements of subsection (3)(a) or (7)(a) were satisfied."

§ The noble Baroness said: I beg to move.

§Lord Goodhart moved, as an amendment to Amendment No. 80, Amendment No. 81: ‘Line 6, leave out from "order" to "against" in line 7.’

§ The noble Lord said: This amendment has already been debated. It imposes the same procedure for both kinds of control order. I beg to move.

§ On Question, amendment agreed to.

§Lord Goodhart moved, as an amendment to Amendment No. 80, Amendments Nos. 82, 83, 84 and 85: ‘Line 28, leave out paragraph (c).’‘Line 31, after first "that" insert "if’‘Line 34, at end insert "the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention’‘Line 35, leave out "derogating’

§ On Question, amendments agreed to.

§[Amendments Nos. 86 and 87 not moved.]

§Lord Goodhart moved, as amendments to Amendment No. 80, Amendments Nos. 88, 89 and 90: ‘Line 60, leave out paragraph (c).’‘Line 64, at beginning insert "if’520‘Line 67, at end insert "that it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention’

§ On Question, amendments agreed to.

§ On Question, Amendment No. 80, as amended, agreed to.

§Baroness Scotland of Asthal moved Amendment No. 91: ‘After Clause 3, insert the following new clause—’

§"ARREST AND DETENTION PENDING DEROGATING CONTROL ORDER

§ (1) A constable may arrest and detain an individual if—
(a) the Secretary of State has made an application to the court for a derogating control order to be made against that individual; and
(b) the constable considers that the individual's arrest and detention is necessary to ensure that he is available to be given notice of the order if it is made.

§ (2) A constable who has arrested an individual under this section must take him to the designated place that the constable considers most appropriate as soon as practicable after the arrest.

§ (3) An individual taken to a designated place under this section may be detained there until the end of 48 hours from the rime of his arrest.

§ (4) If the court considers that it is necessary to do so to ensure that the individual in question is available to be given notice of any derogating control order that is made against him, it may, during the 48 hours following his arrest, extend the period for which the individual may be detained under this section by a period of no more than 48 hours.

§ (5) An individual may not be detained under this section at any time after—
(a) he has become bound by a derogating control order made against him on the Secretary of State's application; or
(b) the court has dismissed the application.

§ (6) A person who has the powers of a constable in one part of the United Kingdom may exercise the power of arrest under this section in that part of the United Kingdom or in any other part of the United Kingdom.

§ (7) An individual detained under this section—
(a) shall be deemed to be in legal custody throughout the period of his detention; and
(b) after having been taken to a designated place shall be deemed—
(i) in England and Wales, to be in police detention for the purposes of the Police and Criminal Evidence Act 1984 (c. 60); and
(ii) in Northern Ireland, to be in police detention for the purposes of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.1989/1341 (N.I.12));

§ but paragraph (b) has effect subject to subsection (8).

§ (8) Paragraphs 1(6), 2, 6 to 9 and 16 to 19 of Schedule 8 to the Terrorism Act 2000 (c. 11) (powers and safeguards in the case of persons detained under section 41 of that Act) apply to an individual detained under this section as they apply to a person detained under section 41 of that Act, but with the following modifications—
(a) the omission of paragraph 2(2)(b) to (d) (which confers powers on persons specified by the Secretary of State, prison officers and examining officers):
521 (b) the omission of paragraph 8(2), (5) and (5A) (which relates to the postponement of a person's rights in England and Wales or Northern Ireland); and
(c) the omission of paragraphs 16(9) and 17(4) and (4A) (which make similar provision for Scotland).

§ (9) The power to detain an individual under this section includes power to detain him in a manner that is incompatible with his right to liberty under Article 5 of the Human Rights Convention if, and only if—
(a) there is a designated derogation in respect of the detention of individuals under this section in connection with the making of applications for derogating control orders; and
(b) that derogation and the designated derogation relating to the power to make the orders applied for are designated in respect of the same public emergency.

§ (10) In this section "designated place" means any place which the Secretary of State has designated under paragraph 1(1) of Schedule 8 to the Terrorism Act 2000 (c. 11) as a place at which persons may be detained under section 41 of that Act."

§ The noble Baroness said: The preliminary hearing of a derogating control order will take place within a few days, if not hours, of the application by the Secretary of State. Because of this—and because the initial hearing will be on an ex parte basis—there will normally be no need for any additional provision.

§ However, in some cases it may be believed that an individual who is the subject of the control order application may disappear before such time as the order, if made, can be served on him. In derogating control order cases we need to be satisfied that the imposition of the most stringent condition is necessary to protect the public. An inability to act to prevent such an occurrence would leave a significant gap in the derogating control order system.

§ We have therefore provided that there should be a new power of police arrest and detention pending the preliminary hearing before the court for the necessary order. The new clause provides that the period of detention should be for a maximum of 48 hours in the first instance and the power arises only after the Secretary of State has made the application and provided that it is necessary to ensure that the suspect is available for service of the order if made. This may be extended under subsection (4) for a further 48 hours by the judge considering the ex parte application.

§ The remaining provisions relate to the status of the individual while detained under this provision, including applying many of the powers as safeguards provided in respect of Section 41 of the Terrorism Act detention provisions such as access to lawyers, the ability to notify someone of his arrest and similar matters. Such powers of arrest will in themselves require a derogation for Article 5 of the ECHR. Subsection (5) therefore provides for this.

§ Amendments Nos. 148 and 154 may also be included in this group. I shall therefore speak to those.

§ Amendment No. 148 ensures that any proceedings questioning the arrest and detention of a person under the new powers fall within the definition of proceedings that may be considered by the court.
522
§ Amendment No. 154 includes the new power of arrest within the definition of derogation matter, since the specific derogation respect of this power would also be needed. I beg to move.

§Lord Lloyd of Berwick
I oppose the amendment. It is a very good example of how liberties can be eroded without anybody noticing. It is a basic rule of English law that when a man is arrested he is entitled to be told what he has wrong—that is, the offence that he has committed. That has always been the English law. It was put in statutory form in the Police and Criminal Evidence Act. Not surprisingly, it is also law under the European convention as enshrined in the Human Rights Act.

When the constable arrests a person who is suspected by the Home Secretary, what offence will he be told he has committed? Unless he can be told that he has committed an offence, he has been wrongfully arrested. The constable cannot tell him that he has been arrested and will be taken in however short a time before a court because he is involved in terrorism-related activities or something similar. That is not an offence in English law and it is not proposed to be in effect under the Bill. Until there is an offence of that kind, the arrest cannot be lawful.

§The Duke of Montrose
This clause on arrest and detention pending a derogating control order has caused some worries north of the Border. The clause appears to allow a constable to arrest and detain an individual if the Secretary of State has made an application to the court for a derogating control order in respect of that individual and the constable considers that the arrest and detention is necessary to ensure that he or she is available to be given notice of the order if it is made. They will have to wait until a letter is delivered or until something similar occurs.

I appreciate that the Government may wish to make provision to ensure that those suspected of involvement in terrorism-related activity are held in custody pending determination of the derogating order, but is the mechanism set out in the Bill the appropriate way to achieve this? I would also welcome clarification of how this will interact with Scottish criminal procedure.

There is in Scots law a clear distinction between detention and arrest. The intention behind the traditional concept of detention is to allow time for further enquiry by the police where there is reasonable cause to suspect the involvement of an individual in the commission of a crime punishable by imprisonment but where there is insufficient evidence to press charges.

The purpose of detention is to assist in the investigation of the matter. As soon as it is clear that sufficient evidence exists to arrest a suspect, detention should be terminated and at that point the person may be arrested.

A person may be arrested when there is sufficient evidence to point to the involvement of that individual in the commission of a crime. The crime must be one which is capable of being punished by imprisonment. In this 523 subsection, there is no clear reference to the constable suspecting that the individual has been involved in a crime. The basis of the arrest appears to focus on the fact that an application has been made and the ability to serve notice of the derogating control order on the controlled person. It might be more appropriate for the subsection to refer to a belief on the constable's part that the individual is or has been involved in terrorism-related activities and therefore that detention—rather than arrest—is appropriate while further enquiry is going on. If there is sufficient evidence to proceed to arrest, why are criminal proceedings not raised and pre-trial detention considered?

Alternatively, if the purpose of the provision is to ensure that the individual's movements are restricted pending determination of the derogating order, rather than introducing an artificial concept of arrest, a combination of conditions could be imposed on the individual in terms of a non-derogating order which would allow for supervision or monitoring over the period concerned.

I question whether the clause currently takes full account of the devolution settlement. Will the Secretary of State consult Scottish Ministers before police officers in Scotland become involved in the process? If there is sufficient evidence on which to arrest an individual, will the Lord Advocate become involved in the direction of the investigation?

Clarification would therefore be welcomed on the terminology which is used in relation to detention and arrest, especially in the Scottish context; the appropriate basis for detention or arrest—that is, based on suspicion of criminal activity; and, the role of Scottish Ministers and in particular the Lord Advocate in this process. Subsection (4) refers to the power of the courts to extend the custodial period of 48 hours by a further period of 48 hours. It is unclear whether the court will make this assessment ex proprio motu or on the application of the police officer involved.

§Viscount Bledisloe
Will the Minister explain how the amendment relates to Amendment No. 80? Under Amendment No. 80 when the Secretary of State applies to the court there is an immediate hearing. If the court thinks fit, it can make an immediate control order. So, if the person is thought to be likely to blow up the Houses of Parliament that evening, the court can make a control order to put him under house arrest. That will detain him and render him available to have the notice served on him.

In what circumstances do you not obtain an immediate control order but you none the less need to arrest the person so that he is available to be given notice? That is my first question. Secondly, as it has now been decided that the court will make control orders of a non-derogating nature, is it intended to extend this new clause in Amendment No. 91 to include non-derogating orders?

Lord Morris of Aberavon
I voted against the Government on the previous issue; I rise to support the Government on this amendment. There is a hole 524 to be filled by reason of the previous concession of the Home Secretary and the decision taken by the Committee today.

The analysis of the noble and learned Lord, Lord Lloyd, is absolutely right about what has to prevail on all the circumstances that we normally know about. These are unusual circumstances. There is a hole to be filled. There is a need to ensure that a person for whom the Home Secretary wishes to issue an order must be available when that order is made. Therefore, as a matter of common sense, the amendment should be carried.

§Lord Carlisle of Bucklow
I find myself slightly concerned with the amendment. I understand entirely and agree with what the noble and learned Lord, Lord Morris, said. Clearly, there must be a power to arrest someone where in the end there will be no ability to try him. I realise therefore that he cannot be told on his arrest the evidence on which he has been arrested or the sources from which that evidence comes.

If I correctly understood the noble and learned Lord, Lord Lloyd, he was saying that the person will not even be told that he is arrested on the basis that there are reasonable grounds for suspecting he is involved in terrorist-related activity. Is that really so? What is the objection to saying to a person, "You have been arrested. The basis for your arrest is that we believe you to be involved in terrorist-related activity"? The man may say, "Tell me what". The constable may say, "I am sorry, I am not prepared to do so", but at least he has been told the general basis on which he is arrested.

The noble and learned Lord was saying that the reason this cannot be done is because there is no suitable offence of being involved in a terrorist offence. If so, is not the answer to make an offence which covers the point, so that he can be arrested in pursuance of that offence, rather than to leave it with him saying, "What have you picked me up for—urinating in the street, being a nuisance at a football match, or what? Or am I said to be a terrorist?". He must surely have the limited right to know that.

§ 5.45 p.m.

§Lord Phillips of Sudbury
Perhaps the noble Baroness could afford some elucidation on subsection (1)(b) of the new clause. I apologise for not having given her notice of my inquiry, which may mean that she has to write to me. Subsection (1)(b) says that a constable may arrest and detain an individual if—and this is the point— ‘the constable considers that the individual's arrest and detention is necessary to ensure that he is available",’ and so on. I am slightly foxed about how a constable will be in the position to form an independent view on the necessity of the arrest in the kind of circumstances that are likely to prevail, which may be that the word goes out to all police cars in a district to arrest the person driving a particular car. I cannot see how that 525 is compatible with the requirement in the subsection. I should be grateful for any elucidation the noble Baroness may be able to give.

§Lord Tebbit
The noble Lord, Lord Carlisle, asked the question which I was almost too shy to ask. What does the constable say to the person whom he has been told to arrest? After all, if a constable came to me and said, "I am sorry, Lord Tebbit, you are under arrest", naturally I would say, "What for?". What does he then say—"I'm afraid I cannot tell you"? What exactly does he say? What are the appropriate words? It would be very interesting to know. I have to assure the Committee, and particularly those Members who are both noble and learned, that the average man in the street thinks that under these circumstances the constable would say to him, "I'm arresting you on suspicion of being involved in a conspiracy to cause explosions", or something of that kind, and take him down to the station. By the time the procedure had gone on for a few hours, days and so on, the order would either be made or not.

So one could drop the charge and then move into the second phase of the order; or if the order was not made, the constable could say to him, "Look, I am terribly sorry, but it was all a ghastly mistake and you are free to go now". What would happen? I shall be fascinated if the noble Baroness will tell us what words the constable would use; why is the approach which the man in the street would expect to be used impossible; or is it that it is a very naughty approach and so we would not like to own up to it ever having been done?

§Baroness Scotland of Asthal
I shall deal with the mischief first. It is likely that in the majority of cases an application would be made before the court and the court would make an order in relation to a person who has been identified as subject to a control order.

That deals with the situation where information may have reached the security or other services that someone is, for example, about to get on an aeroplane. The fear may be that the person has a bomb or other device. Before it is possible to go before the court it is necessary to stop him getting on the plane. Therefore, in those circumstances that person would have to be stopped and detained in some way.

It is anticipated that that person would be notified that they are being arrested and detained pursuant to—if it were to become—the new section of the Prevention of Terrorism Act, which permits the Home Secretary to apply to make orders and to detain people where there is a reasonable suspicion and/or—whatever the amendment now says—whether the Secretary or the judge is satisfied on the balance of probabilities about the person. It is perfectly possible to tell the person under which section he is being detained.

We are dealing with the practical situation, as my noble and learned friend Lord Morris points out. It may not be possible to go before the 24-hour duty judge. A 526 telephone application may be made just as the man or woman is about to step on to the aeroplane, when it is essential that the person does not do so.

§Lord Tebbit
I am grateful to the noble Baroness. I understand exactly the circumstances that she is describing. The chap is going up the steps of the aeroplane and you believe that he has a bomb that will blow up the aeroplane, so why on earth not arrest him on suspicion of being about to blow up an aeroplane? That surely is an offence for which someone could be arrested. I imagine that it is. There must be something somewhere in the law. Having arrested him, you could then investigate him for a while. Surely it does not need this Bill to arrest somebody who is on the way up the steps of an aeroplane with a bomb in his pocket.

§Baroness Scotland of Asthal
That may not be the best example, but there are all sorts of other examples, such as people having information. The important point that I wished to make is that it may be necessary to stop and/or detain that person to enable due process to take place and come before the court. We are contemplating the situation of the new procedure when the Home Secretary will not of his own motion he able to so confine or restrain a person, but it will be incumbent on him to apply to a judge so to do. Therefore, certain logistical realities may arise in those circumstances, and it is for that lacuna that we seek to provide.

In relation to the issue raised by the noble Duke, the Duke of Montrose, I shall say what I said earlier in relation to this type of activity. It is not a devolved matter. It is a free-standing power to arrest and detain, which would arise in the context of a reserved matter. such as terrorism. It is not related to a criminal investigation and it is analogous to the powers of arrest and detention in the context of immigration law, which is another reserved matter. Therefore, it is not a case when the devolution issue comes into play.

I can reassure the noble Duke that we have already been in consultation with our colleagues north of the Border. On this occasion the Procurator Fiscal, as opposed to the Lord Advocate, will be involved, but we are very much alive to the difference in structure that applies in relation to matters that take place north of the Border. Such matters are being taken into account.

§Viscount Bledisloe
Before the noble Baroness sits down, surely in the example that she gave, the constable is arresting the person not so that he is available to give notice, but to prevent him committing the crime. I can understand that.

Let us suppose that the person is flying to somewhere within the jurisdiction with his bomb to blow up the plane. He is not being stopped so that he will be available to be given notice; he is being stopped to prevent the crime. That is what ought to be in the Bill. 527 Will the noble Baroness answer my second question? Is it intended to extend the power to apply to all control orders now that they all have to be made by the court?

§Baroness Scotland of Asthal
I am bound at this stage by the expression of the Committee' view. The Government do not propose to so extend the power, but we shall have to reflect on the consequences of the vote this afternoon and consider the position further. But we do not at the moment propose to so extend the provisions.

The provisions were limited to deal with the derogating orders only. However, I have to accept that the Committee has decided to conflate the two procedures into one. That is not a view with which the Government agreed—as evidenced by the vote—or may not continue to disagree. We now have to consider that matter.

Perhaps my example was not the best, as we could use Section 41 provisions if the person actually had a bomb. Let us suppose that a person who was identified as being involved in terrorist activity was about to disappear. It would be important to detain him if the court thought it appropriate. He would become subject to a control order so that we could better control his activity, thereby keeping our citizens safe. It would be nonsensical to have no method by which that person could be so contained, permitting him to disappear and thereby enhance the nature, quality and extent of the threat that he may pose.

Of course, the period is limited to 48 hours. It is reasonably anticipated that within that time the matter could be swiftly brought before a judge who would be able to consider whether such detention by way of a control order is appropriate, to consider the extent to any condition that may apply and either to release or deal with the individual in a way that was proportionate and in accordance with the outline of the powers herein contained.

That is the practical situation facing us. We think that it would be better to enable the person to be so detained and the matter thereafter speedily dealt with—evidenced by the 48 hours—by the court which would be seized of the matter as soon as reasonably practicable.

The Committee should remember that before derogation the Home Secretary would have to have done a number of things. First, an order has to be laid, which identifies the group or persons against whom the derogation is needed or merited. Secondly, the nature of the conditions that amount to a derogation must be outlined in the order. The Secretary of State then has 40 days in which to bring the matter back to your Lordships' House and the other place. Immediately, and only after he has so laid that order can the Secretary of State apply for an order before the court. Logistically it may take more than a couple of hours to do that. In that time, the person involved may have disappeared. The whole purpose of the provisions is to ensure that that does not happen.

§Lord Lloyd of Berwick
The noble Baroness has not quite dealt with my point. I see the need, but equally 528 there is a need to inform someone who is arrested of what offence he is thought to be guilty. It has never happened before that someone could be arrested and the policeman has to say, "I'm afraid I don't know what offence you have committed, but I'm told you should be arrested". That is not how it has been done.

§Baroness Gibson of Market Rasen
Before my noble friend sits down, I want to say that I am not a lawyer, but I have listened carefully to the debate. If a policeman arrested me, as the noble Lord, Lord Tebbit, said, my first question would be, "What am I being arrested for?".

As I understood the reply earlier, the policeman would say that I was being arrested under the Prevention of Terrorism Act. That would seem to indicate that I was regarded as a terrorist. It is common sense in these difficult circumstances. We are facing something that we have never had before in this country. If we were to say that the arrest was made under the Prevention of Terrorism Act, would the noble and learned Lord, Lord Lloyd, still ask for more? I think that that would be enough to indicate to me why I had been arrested.

§ 6 p.m.

§Lord Tebbit
I am most grateful to the noble Baroness. She should have no fear that I differ with her on the need for a provision to ensure that a terrorist or suspected terrorist does not disappear. Of course we all agree with that. But it is a mark of the confusion, the rush and the haste with which this legislation is being brought forward not only that this amendment could have been tabled at this late stage—after all, it should have been discussed in the Commons last week—but also that the noble Baroness, who is normally so absolutely in command of her brief, should have brought forward such an absurdly inappropriate example as that of the man going up the aeroplane steps with a bomb. We all know about him, and about what has happened in the past.

Fifty years ago, when I was a young second officer on an aeroplane, I was instructed by the captain to go back and sort out a passenger who appeared to be a threat to the safety of the aeroplane. I took the fire axe with me, I demonstrated to him that it was available, and his behaviour then seemed not to constitute an offence any longer. So I am certainly with the Government in how they approach some of these matters, but it is being done in an unpardonable rush, and 50 years on I might have second thoughts about whether my behaviour was perhaps over the top.

§Baroness Scotland of Asthal
I cannot imagine that anyone would ever suggest that the noble Lord could in any circumstance go over the top. That would be outwith his character, I am sure.

The powers are analogous to the powers of arrest and detention in immigration law, which is another reserved matter. They arise in a very similar way. It is not a criminal matter. My noble friend Lady Gibson is absolutely right in how she describes it; she has not misunderstood. As I have tried to make plain, detainees would be told that Section 91A of the 529Prevention of Terrorism Act was being used, and that my right honourable friend the Home Secretary had made an application for an order in their respect, so they would know precisely why they were being detained. It is right that they would not know all the evidence, but there would be no difficulty in their understanding fully that they were not being detained for their health.

§Lord Phillips of Sudbury
I wonder whether the noble Baroness is right in saying that. The definition of "terrorism-related activity" in Clause 1(8) covers somebody who is acting without any intention to encourage terrorism. I do not think that someone whose conduct gives encouragement but who does so unintentionally would have any such knowledge.

§Baroness Scotland of Asthal
They would be told, "You are being detained because the Home Secretary is at this very moment applying for an order in relation to the control orders pursuant to the Prevention of Terrorism Act". People so detained would know that they had been arrested under those terms. As I said earlier, in all these cases the usual provisions regarding facilities for lawyers and such matters will be made, and obviously there will be an opportunity for them to make representations when the matter comes before the court in due course.

To take the point made by the noble Lord, Lord Tebbit, the whole point of this provision is that we listened very seriously to the comments of Members on our Benches in the other place, and others, who wanted a judge element to be introduced in the case of derogating orders. Having taken that practical issue into account, it became apparent that there would be a possibility of a time lag between the time in which the court could make the order and the time in which the person might disappear. For that reason, having accepted the rationale that a judge-made order will take a little more time—a judge will act more slowly than the Home Secretary could act—it was necessary to insert this provision for the odd case where it may not be possible to get an order from the court first.

§Lord Elton
Does that continuous availability of the Home Secretary mean that in practice there will be some administrative means by which permission will be given in his name by somebody else? If not, why is he more readily available than members of the judiciary on a rota?

§Baroness Scotland of Asthal
There are two factors. My right honourable friend the Home Secretary remains responsible for those issues throughout the whole period in which he remains in that role. As noble Lords would expect, and a number of noble Lords who have been in this position will know, the Home Secretary will get regular briefings on the state of security matters as they pertain to our country. Therefore, it is likely that he will be in a better position to take immediate action, the security services and the 530 police having identified a particular activity. He will be able to act quickly to ensure that that is brought under control.

It will then be necessary for the Home Secretary to put before the court the evidence upon which he seeks to rely to verify and justify the act that he has so taken, and the court will be able to carry out merit-based scrutiny of derogating orders and decide whether the judgment exercised by the Home Secretary was correct. I will talk about derogating orders, as they are the parts on which we are all agreed, notwithstanding the vote that has just taken place.

§Lord Elton
Does that mean that the order can be signed only by the Secretary of State in person?

§Baroness Scotland of Asthal
It will work in the ordinary way. My right honourable friend the Home Secretary will make the decision, and that decision will be communicated. If the noble Lord is asking whether that can be done only in writing, all of us know of situations where we are contacted over the telephone and decisions are made that are subsequently reduced into writing. But it will be the decision of my right honourable friend the Home Secretary. The Bill provides that, if the Home Secretary should be indisposed for some reason which would make it physically impossible for him so to do, the Secretary of State can act on his behalf.

§Lord Tebbit
I recollect an occasion while I was, I think, the Secretary of State for Trade and Industry, when I signed an order under the Prevention of Terrorism Act in relation to Northern Ireland, on the basis of the evidence that was presented to me, because the Secretary of State was not available. I understood that that was the normal rule, and that in this sense "the Home Secretary" means the Secretary of State, and that any Secretary of State may exercise those powers. Is that correct?

§Baroness Scotland of Asthal
The position remains the same. Obviously if the Home Secretary is available he or she will make that decision. In extremis, the most important thing is that a Secretary of State, properly vested with that authority on behalf of our country, makes the decision.

§ The noble Lord said: This amendment is consequential and has already been debated. It certainly appears to be consequential. I beg to move.

§ On Question, amendment agreed to.

§The Deputy Chairman of Committees
In these circumstances, I cannot now call Amendments Nos. 102 to 115, by reason of pre-emption. I think that is correct, but I can see a slight problem.

§Lord Goodhart
I was certainly expecting Amendment No. 112 to be moved. It does not seem to be pre-empted. The government amendment seems, in fact, to be necessary.

§The Deputy Chairman of Committees
My understanding is that if Amendment No. 101 were agreed to, Amendments Nos. 102 to 115 could not be moved, because of pre-emption. I understand the difficulty. because there are government amendments.

§Lord Elton
Amendment No. 101 removes the part of the Bill to which the amendments, which are now being discussed, relate. There is nothing there for the amendments to amend.

§Lord Falconer of Thoroton
Can we deal with the situation in this way? The noble Lord, Lord Goodhart, has moved his amendment which, in effect, deletes provisions allowing the controlled person to apply to the Secretary of State to have a control order modified. That is, I think, the effect of the amendment that the noble Lord moved. It is in an earlier group; we have never actually discussed this particular provision. The noble Lord moved it with such conspicuous speed that—and this is entirely my fault—I failed to pick up that it was not consequential on anything we had done before. It involves a wholly new point.

§Lord Kingsland
Inconspicuous speed.

§Lord Falconer of Thoroton
The noble Lord, Lord Kingsland says, in order to accentuate my humiliation, that it was moved with inconspicuous speed. I agree with that completely. I suggest the following procedure: that the noble Lord, Lord Goodhart, should outline a little why we should remove the power to modify, then we will reply, and that way we will know where we are.

§Lord Goodhart
The modification in subsections (1), (2) and (3) provides for a power of the Secretary of State to revoke or modify an order. In view of what has happened earlier—since the Secretary of State will not 532 have power to make an order—it is, therefore, effectively consequential that he cannot revoke or modify it. However, there does need to be a provision for revocation or modification. That did seem to be effectively provided, subject to a couple of minor consequential amendments, by Amendment No. 112. If it were simply inserted—as, in a sense, that is consequential on the removal of subsections (1), (2) and (3)—then it provides a system which we think is necessary.

§Lord Falconer of Thoroton
I am happy to go along with the approach that the noble Lord, Lord Goodhart, is proposing. However, I am being told by the Clerk at the Table that we cannot do that, as it has been pre-empted. I do not know if we can vote. It would be most inappropriate of us to suggest that we over-ride the Table, but we broadly agree on how we want to proceed on this amendment. If we are not going to be allowed to vote on Amendment No. 112, then I would oppose the amendments of the noble Lord, Lord Goodhart. I would have thought the right course is for us is to have voted on Amendment No. 101 and, having allowed that, then vote on Amendment No. 112 in as well.

§Lord Desai
Would it be helpful to adjourn for about 15 minutes, while the Front Benches sort this matter out? They are talking to each other, but we at the back cannot hear what is going on. It is in such a muddle, I think it would be helpful if the usual channels would agree to an adjournment for 15 minutes.

§Lord Davies of Oldham
I beg to move that the Committee do now adjourn until 6.25 p.m.

Moved accordingly, and, on Question, Motion agreed to.

§[The Sitting was suspended from 6.17 to 6.25 p.m.]

§Lord Falconer of Thoroton
had given notice of his intention to move Amendment No. 116: ‘Page 6, line 44, after "(2)(d)" insert "or (3B)(c)’

The noble and learned Lord said: I am very grateful for the time given to the Front Benches. So that we all know where we are, Amendment No. 101 was passed by the Committee and we accept that several subsequent amendments have been pre-empted. However, we are all agreed that a provision similar in substance to government Amendment No. 112 should be put in the Bill. We will bring forward on Report an amendment to that effect. We accept entirely the instruction from the Deputy Chairman of Committees that government Amendment No. 112 has been preempted. Given that, the sensible course is the one we have adopted.

I think that that brings us to Amendment No. 116, which was tabled in the first grouping under Amendment No. 47. I could say that the amendment has already been spoken to, but our conversation on it was exiguous, to say the least. It provides that the controlled person will be bound by modifications to derogating control orders imposed by the court as well 533 as all other modifications made by the Secretary of State or the court as appropriate. In effect, it is a drafting amendment.

§Lord Elton
So that I and other noble Lords understand what is going on, Amendment No. 116 is an amendment to Amendment No. 112, which was not moved. What are we amending?

§Lord Falconer of Thoroton
I think that the noble Lord is correct. We should wait to move Amendment No. 116 until we are able to move Amendment No. 112. I shall not move the amendment. I thank the noble Lord.

§[Amendment No. 116 not moved.]

§Lord Kingsland moved Amendment No. 117: ‘Page 6, line 45, after "modification" insert "and the reasons for the making of the order, renewal or modification’

§ The noble Lord said: I advance this amendment with a degree of trepidation. I shall probably find that, by the time I am half way through the second sentence. I shall be informed by a noble Lord that it is also attached to a subsection which has disappeared from the Bill.

§ I readily accept, that in the light of our earlier vote, the other amendment to which I shall be speaking in this group, Amendment No. 199, now makes no sense because it places obligations on the Secretary of State in circumstances in which he is no longer in a position to act. The provisions set out in Amendment No. 117 are therefore relevant not to anything done by the Secretary of State, because he is no longer going to make the control order, but to what is done by the court.

§ However, the principle is just as important with respect to the court as it is to the Secretary of State. When the control order is issued, the reasons for the making of the order, its renewal or its modification, must be plain to the person who is subject to the order. I do not need to go as far as the European Convention on Human Rights to derive authority for that proposition. I need simply to look at the first chapter of a novel by Mr Kafka, The Trial, for noble Lords to understand exactly why my amendment should be in the statute.

§ It goes wholly against all the principles to which we subscribe, as a society based on the rule of law that. if someone is to be restrained in any way, they are not given the reasons. In the context of control orders, for example, if someone is about to be imprisoned as a consequence of surveillance, we may not be in a position to say that that surveillance was conducted by Mr Smith employed by M15 or M16 or it may not be appropriate to say that the equipment used in the surveillance was of a certain type produced by a well known telecommunications company.

§ Nevertheless, the fact that he was surveilled, and the results of that surveillance, ought to be clear to the person before a control order can be legally issued.
534
§ We shall be returning to these matters in more detail when we come to Schedule 4 and look at the rules of the court. There must be limits on laying those employed to conduct surveillance open to exposure to the wrong people and we must protect the advanced techniques that play a part in our surveillance systems. Within those constraints, however, I suspect that it is the controls that we in your Lordships' House impose by amendment on the rules of the court that will ensure that we reflect the fundamental traditions of our society. We ought to be able to devise such a set of rules. I beg to move.

§ 6.30 p.m.

§Lord Thomas of Gresford
I wholly support Amendments Nos. 117 and 119, for the reasons given by the noble Lord, Lord Kingsland. Since it is a subject to which we will be returning when we come to the schedule, as he said—it is all a question of due process—I do not propose to say anything further at this stage.

I will just draw the attention of Members of the Committee to Amendment No. 118, in my name and that of my noble friend Lord Goodhart, which ensures that if a control order. or its renewal or modification, is served upon an individual it should be in a language that he understands, whether it be Welsh or Urdu. Certainly it should be in a language that he understands, so that he can obey the control order. The importance of this is that the breach of the order is a criminal offence, punishable with up to five years' imprisonment. He must know why he is going to prison—for breaking the order—as well as knowing the contents of the order itself.

§Baroness Scotland of Asthal
First, these orders would not differ from ordinary orders in as much as, if there is to be breach, the order would have to state clearly what those acts and/or omissions that the individual would have breached were.

My second point is about the notice containing a statement explaining why the control order was being imposed, renewed or modified. One of the difficulties in such cases is that the reason for the modification or the control order might be within the ambit of information that cannot be given precisely to the individual. We have already spoken about the procedures and the matters that may be closed information or open. For these reasons, we say that Amendments Nos. 117 and 119 are flawed, because they do not seek to acknowledge closed information, which may be the basis on which the modification is made and, therefore, which may not be able to be disclosed to the individual.

On Amendment No. 119, which requires the Secretary of State to serve a summary of the case upon which he has relied to the controlled person, there is the same issue as for Amendment No. 118. It will be of the utmost importance for there to be a great degree of clarity on the precise nature of the restrictions and the conditions. That individual should know precisely what he is or is not permitted to do by way of the 535 control order and the consequences of breach. Those matters could easily he provided in a way that would provide clarity.

The noble Lord, Lord Thomas of Gresford, talked of notes "intelligible to him". Those words would apply to each and every order that is made to these or other proceedings. We would say, with the greatest respect, that they are unnecessary.

§Lord Kingsland
I am most grateful to the noble Baroness for her reply.

We accept that, as I think I said in proposing the amendment, that there would be many occasions upon which it would be inappropriate to name the source of the information and the techniques that were used to garner that information. That does not prevent telling the proposed controllee that the reason for the order being issued is because he has been seen to be doing X at a certain place. It seems to be perfectly consistent with protecting our sources to say that.

These are matters that we will be returning to in more detail when we consider Schedule 4, but a lot of our problems on these Benches in relation to all the evidential issues to which control orders give rise would be solved if the Government were prepared to accept that the rules of court would be made by the Lord Chief Justice, on consultation with the Lord Chancellor. This is the reverse of a familiar refrain that we have been listening to during the course of the Constitutional Reform Bill, where it has been the Lord Chancellor making rules after consulting the Lord Chief Justice. The best possible protection that one can give to due process in this Bill is to reverse that situation. It should be the Lord Chief Justice who determines the rules, after consulting the Lord Chancellor, who has this twin role of sitting in the Cabinet, representing both the views of the judiciary to the Cabinet and the views of our political masters to the judiciary. That is an amendment that will come later. If we succeed in getting it, it will wrap up a lot of these issues in an elegant way, and in a way that best protects our fundamental freedoms.

§Baroness Scotland of Asthal
We strongly believe that the ordinary constructs should apply for the rules. The noble Lord knows that my noble and learned friend the Lord Chancellor has debated these issues long and hard during the constitutional debate. If I could foreshadow what is coming, and say to the noble Lord that we think that that tried and tested method, namely the Lord Chancellor acting in consultation with the Lord Chief Justice, would probably be the best way. I do not want to pre-empt the delight awaiting the House when the schedule is debated.

§Lord Kingsland
I have deliberately sought only to foreshadow that debate telegraphically. I beg leave to withdraw the amendment.

§Baroness Scotland of Asthal moved Amendment No. 123: ‘Page 7, line 9, at end insert "and’
‘ (b) the notice must set out the time from which the revocation or modification takes effect." ’
§ On Question, amendment agreed to.

§Lord Thomas of Gresford moved Amendment No. 124: ‘Page 7, line 12, leave out "Secretary of State" and insert "court’

§Baroness Scotland of Asthal moved Amendment No. 126: ‘After Clause 5. insert the following new clause—’

§ "CRIMINAL INVESTIGATIONS AFTER MAKING OF CONTROL ORDER

§ (1) This section applies where a control order has been made against an individual if it appears to the Secretary of State—
(a) that the involvement in terrorism-related activity of which that individual is suspected may have involved the commission of an offence relating to terrorism; and
(b) that the commission of that offence would fall to be investigated by a police force.

§ (2) The Secretary of State must inform the chief officer of the police force that the control order has been made and that this section applies.

§ (3) It shall then be the duty of the chief officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.

§ (4) Where he considers it appropriate to do so in performing his duty under subsection (3), the chief officer must consult the relevant prosecuting authority.

§ (5) In this section—

§ "chief officer"—
(a) in relation to a police force maintained for a police area in England and Wales, means the chief officer of police of that force;
(b) in relation to a police force maintained under the Police (Scotland) Act 1967 (c. 77), means the chief constable of that force;
(c) in relation to the Police Service of Northern Ireland, means the Chief Constable of that Service;
537 (d) in relation to the Serious Organised Crime Agency, means the Director General of that Agency; and
(e) in relation to the Scottish Drug Enforcement Agency, means the Director of that Agency;

§ "police force" means—
(a) a police force maintained for a police area in England and Wales;
(b) a police force maintained under the Police (Scotland) Act 1967 (c. 77);
(c) the Police Service of Northern Ireland;
(d) the Serious Organised Crime Agency; or
(e) the Scottish Drug Enforcement Agency;

§ "relevant prosecuting authority"—
(a) in relation to offences that would be likely to be prosecuted in England and Wales, means the Director of Public Prosecutions;
(b) in relation to offences that would be likely to be prosecuted in Scotland, means the appropriate procurator fiscal;
(c) in relation to offences that would be likely to be prosecuted in Northern Ireland, means the Director of Public Prosecutions for Northern Ireland.

§ (6) In relation to times before the Serious Organised Crime Agency begins to carry out its functions, this section is to have effect as if—
(a) the National Crime Squad were a police force; and
(b) references, in relation to that Squad, to its chief officer were references to its Director General.

§ (7) In subsection (5)—
(a) "the Scottish Drug Enforcement Agency" means the organisation known by that name and established under section 36(l)(a)(ii) of the Police (Scotland) Act 1967 (c. 77): and
(b) "the Director" of that Agency means the person engaged on central service (as defined by section 38(5) of that Act) and for the time being appointed by the Scottish Ministers to exercise control in relation to the activities carried out in the exercise of the Agency's functions."

§ The noble Baroness said: The amendment relates to criminal investigations after the making of a control order. Earlier today we had a shortened debate on the appropriate involvement of the DPP. We accept that that provision has been passed, although I should make it plain that we do not necessarily accept that that is the best or proper way forward.

§ The amendment deals with what happens after the making of a control order. As the Government have repeatedly made clear, our preferred option will remain always to prosecute suspected terrorists wherever possible. However, for the reasons that we explained earlier, it is often difficult to mount a case in court in such circumstances because of the sensitivity and inadmissibility of the evidence.

§ The Government recognise that after an order is made there will still be a need to review the situation. Amendment No. 126 seeks to allay the concerns that have been expressed that the issue of prosecution will still be reviewed even after a control order has been made. The amendment places a duty on the relevant chief officer to keep under review the investigation of individuals who are subject to control orders during the duration of the order, with a view to their possible 538 prosecution for any terrorist-related offence. The chief officer must consult the relevant prosecution authorities where appropriate.

§ These provisions will ensure that there continues to be active review of the scope for prosecuting an individual throughout the life of any control order. The amendment reflects existing practice. There is already a regular assessment of whether there is any prospect of prosecution. This assessment is carried out by the law enforcement agencies in consultation with the prosecution authorities as appropriate. I should emphasise that decisions on prosecution are for the relevant prosecution authorities.

§ Anticipating questions that may be raised by the noble Duke, the Duke of Montrose, in relation to Scotland, I should make it plain that we have consulted the Scottish authorities. For Scotland, the relevant prosecution authority is currently defined as the Lord Advocate. However, we have been advised by the authorities in Scotland that the correct person is the procurator fiscal who has operational responsibility for investigating and prosecuting crimes occurring in his or her jurisdiction.

§ The relationship between the police and the prosecutor in Scotland is well established. It is an appropriate and common practice for the police to consult the relevant procurator fiscal in such cases, and particularly in cases of serious crime. Thus the operational position in Scotland is more accurately and appropriately reflected in legislation by a reference to the procurator fiscal.

§ I hope that I have pre-empted the question that the noble Duke might have asked. I beg to move.

§Lord Kingsland
I am most grateful to the noble Baroness for introducing the amendment. As she rightly says, we have, as a result of an earlier vote, given the Director of Public Prosecutions a responsibility which precedes rather than follows the imposition of the control order. Therefore. we believe that Amendment No. 126 should be placed on the face of the Bill but be slightly redrawn to make it consistent with the wording of our successful amendment.

We believe, in particular, that if the DPP informs the court at the outset that a prosecution is not possible, nevertheless, following the imposition of the control order, the possibility of prosecution should remain under review. I sense that that is fundamentally what Amendment No. 126 is intended to achieve.

I would prefer to see the responsibility in Amendment No. 126 to continue to be that of the DPP. I am uneasy about any deciding responsibility being on the shoulders of the chief officer of the particular policing area in which the alleged threats to security took place. But I accept, of course, that the police may well play an important role in furnishing the DPP with the additional evidence that he may need to change his mind.

While not opposing the amendment today, I should like to think that, between now and the Report stage, the Government will look at the Committee's earlier amendment and seek to re-craft Amendment No. 126 so that it conforms with the intention that has already been expressed by the Committee.
539
§ 6.45 p.m.

§Baroness Scotland of Asthal
The role of the DPP is one of making decisions whether to prosecute; he is not responsible for preventative orders. We feel very strongly indeed that it will be important for the DPP to maintain his independence from the Home Secretary. That was our view before the vote. Of course we shall consider the issue but I need to make it clear that, by virtue of the vote today, the Government do not assent to the change in that division of responsibility.

§Lord Kingsland
We are entirely in agreement on the matter of principle which the noble Baroness has just expressed. We do not want to see anything on the face of the Bill that compromises the independence of the DPP. But, with great respect to the noble Baroness, that is not the intention that we on these Benches seek. The DPP looks at the evidence and, independently of the Secretary of State, decides in the first instance to advise the court whether or not a prosecution is possible.

We wish the DPP to go on making these investigations after the control order has been imposed, entirely independently of the Secretary of State, to see whether a prosecution might be initiated in two, three or four weeks, or in two, three or four months, after the control order has been imposed.

This has absolutely nothing to do with the Secretary of State. It is something that the DPP does entirely independently of the Secretary of State. Indeed, those are the only circumstances in which we would be prepared to accept the control order system. Once incarcerated or restrained in any way, the primary right of every British citizen is to be able to fight his or her case out in the criminal courts. Just because a control order has been made. that does not in any way entitle the DPP, under the Bill, to resile from his obligations to go on looking for an opportunity to bring the person under the control order to trial in the normal way.

§Lord Forsyth of Drumlean
I agree with everything my noble friend Lord Kingsland said. In moving the amendment, the Minister seemed to have matters the wrong way round. This happens after a control order, whereas the involvement of the prosecuting authority should he before it. The control order should be the last resort.

I wish to pursue the questions that I put to the Lord Chancellor last week in respect of Scotland. I am still not clear about this and perhaps the Minister can tell me the result of the consultations that have obviously gone on since then within Scotland.

I notice that my noble friend Lord Lang, who was also Secretary of State for Scotland, is here. My recollection is that in the good old days before devolution—before we had a Scottish Parliament—when we had administrative devolution, if a procedure of this nature was being carried out in Scotland the Secretary of State for Scotland would be involved.

Looking at the amendment as drafted there does not seem to be any involvement by any of the people who are democratically accountable in Scotland. The Minister 540 said that the law officers would not be involved and that it would be a matter for the procurators fiscal. I find it extraordinary that where draconian powers are being taken we have a proposal—from a Government who say that they want decisions affecting Scotland to be made in Scotland—that marginalises the law officers of Scotland and the First Minister and the Ministers in the Scottish Parliament, who do not seem to be at all involved in the process.

Am I misunderstanding the situation? Will the Minister make it clear whether the proposal has been discussed with the First Minister and the law officers in Scotland and whether they have given their agreement to the procedure? If they have, it is extremely odd.

§Baroness Scotland of Asthal
I should make it absolutely clear that terrorism is not a devolved matter and it never has been. Terrorism remains with Westminster. As a result there will be consultations on how orders will be implemented but they do not need the consent of the devolved administration in Scotland, because these matters have not been devolved but are reserved.

I have already made it plain that the Secretary of State who acts on these matters in the normal way on behalf of the United Kingdom will be the Home Secretary. Of course it is possible for any Secretary of State to be substituted for the Home Secretary if the need arises. I can reassure the noble Lord, Lord Forsyth, that colleagues have been consulted about the measures and there is no dissent from Scotland.

§Lord Forsyth of Drumlean
I am sure that there is no dissent—this Government brook no dissent—and what the Minister says about terrorism not being a devolved matter is correct. My point was that prior to devolution if such an action was being taken the Secretary of State for Scotland would have been consulted and involved. I am simply asking the Minister to confirm that the position now is that no Scottish Minister or law officer will be involved in any way; and that those Ministers have been consulted and have given their agreement to the procedure.

The Minister is looking irritated but this is an important matter. We have a separate legal system in Scotland and separate Scottish law. The Government chose to change the rules by bringing in the Scottish Parliament. Up to now the operation of these security measures has involved the Secretary of State for Scotland and officials in what was then called the Scottish Office; that appears to have disappeared completely. We need to know that because it is important that people understand where accountability lies.

§Lord Cameron of Lochbroom
Before the noble Baroness replies, having held the position of Lord Advocate I express a degree of surprise that the relevant prosecuting authority defined in the clause in relation to offences likely to be prosecuted in Scotland means the appropriate procurator fiscal.

How does the Secretary of State know who is the appropriate procurator fiscal? The procurator fiscal acts under direction of the Lord Advocate. who is 541 responsible for prosecution of offences in Scotland. If there is to be some analogy he is the responsible person for the whole of prosecutions in Scotland; just as the Director of Public Prosecutions is in England and the Director of Public Prosecutions for Northern Ireland is for Northern Ireland.

Perhaps the Government might like to reconsider this point because I regard as inappropriate the idea of the Home Secretary referring to some office in Scotland where there was a procurator fiscal with responsibilities directly related to the prosecution of a serious offence that would normally be prosecuted by the Lord Advocate through his Crown counsel. Will the noble Baroness reconsider the matter? I was deeply worried to see in various parts of the Bill reference to the appropriate procurator fiscal or the procurator fiscal in relation to Scotland by comparison with the Director of Public Prosecutions in other parts of Great Britain and Northern Ireland where different jurisdictions are involved.

§Lord Lang of Monkton
Before the noble Baroness replies, I would like to endorse the remarks of my noble friend Lord Forsyth and the noble and learned Lord, Lord Cameron of Lochbroom, the former Lord Advocate. It is surprising that at the same time as bringing in devolution in Scotland the Government have now brought in some form of reverse upward devolution; whereas extensive consultation and involvement did take place in that respect, even though those matters are not now devolved.

It is all the more surprising since the present Lord Chancellor is the third Scottish holder of that post. One would therefore expect a higher Scottish profile in consideration of these matters. These matters are important not only in Scotland but in the context of the United Kingdom. I hope that the noble Baroness will give a careful and considered reply.

§The Duke of Montrose
I am glad that we have had a chance to go into the Scottish issue. I am grateful for the clarifications brought out by the noble and learned Lord, Lord Cameron. I was interested that in a reply to an earlier question the Minister seemed a little unsure about approaching the procurator fiscal, but she tried to make a rather more robust argument than in this reply.

In following up the questions raised by my noble friend Lord Forsyth, it interests me as a curiosity that we have nominally a Secretary of State for Scotland in the Government. I do not know what role he would have. While looking at the provision earlier when our impression was that the Home Secretary might be trying to give directions to a chief constable, the Law Society of Scotland raised with me that at the same time he would have given information to the Lord Advocate. We are now saying in a stronger way that the Lord Advocate is the more senior law officer and that is perhaps where the process should begin.

§Baroness Scotland of Asthal
First I will clear up the concern over consultation of the noble Lord, 542 Lord Forsyth. We accept and rejoice at the fact that devolution has taken place and that Scotland has so nobly discharged her responsibilities in that regard. The reality means that those matters that are properly devolved have been devolved. The Secretary of State for Scotland remains a full member of Her Majesty's Cabinet. The decisions as to the full nature of the legislation are government decisions, which would include the Secretary of State for Scotland in consideration as a full member of that Cabinet.

Secondly, your Lordships will see that the first draft of these provisions included the Lord Advocate. That was at the instigation of our Scottish colleagues following consultation. We were subsequently told by them that the Lord Advocate was not the appropriate person and in his stead should be substituted procurators fiscal for the following reasons. The chief officer of the relevant force—not the Secretary of State—will consult the procurators fiscal in each area. Of course, the duty is placed on the relevant authorities to keep the matter of prosecution under review. That link between the chief officer and the individual procurators fiscal, who will be responsible for the prosecution, means that it is structured in that way.

How such matters should best be expressed to meet the Scottish construct has been considered in full consultation with our Scottish colleagues, so that the provisions best reflect what they believe is most appropriate for Scotland. I can certainly say to the noble Lord, Lord Forsyth, that these consultations continue, as is proper, but perhaps Scotland is enhanced in her ability to act in a way that she deems appropriate on those matters that are devolved. In no way do they undermine the nature of consultation that takes place before we put in place UK-wide provisions.

§ 7 p.m.

§Lord Forsyth of Drumlean
I do not want to prolong the matter—we may return to it at a later stage. I believe that that is a deeply unsatisfactory response. We are not talking about an administrative matter. We are talking about the Home Secretary being able to contact a procurator fiscal in Scotland—

§Baroness Scotland of Asthal
No, the Secretary of State will not contact procurators fiscal. It would be quite improper for him to do so. The chief officer, whose proper duty it is to consider such matters, will be the person responsible for contacting the procurators fiscal. One may fundamentally misunderstand the necessary separation but it has to take place for the democratic situation that we now have to continue, with independent separation of prosecution away from the Secretary of State.

§Lord Forsyth of Drumlean
I stand corrected. The Minister is quite right. I was taking a short cut. However, I cannot help pointing out that, in other legislation before the House, the Government seek to take more controls over chief police officers than has previously been the case, both north and south of the Border. Indeed, an amendment giving the First 543 Minister powers to give directions to chief constables has been moved and that is certainly a constitutional innovation.

Returning to my point, the Minister is quite correct to say that the Home Secretary contacts a Scottish police officer who then contacts the procurator fiscal. That is the procedure that has been put in place. That means that the First Minister of Scotland, who is democratically accountable for the Justice Department and for the police service in Scotland, is not involved in the process at all and will know nothing about it, whereas in the past the Secretary of State for Scotland was involved.

The Minister is raising her eyes as though this is a minor matter. These are very important considerations. In the past the Secretary of State for Scotland had responsibility for police forces in Scotland. There are great sensitivities about this matter. It seems to me that these provisions bring in a very novel procedure, which effectively leaves out of the equation the law officers, who, as has been pointed out, are the prosecuting authority. These days the title "Secretary of State for Scotland" seems to be more a ceremonial title than anything else; it is as relevant as "Keeper of the Great Seal" was as part of the previous title of the Secretary of State for Scotland. The Secretary of State has no interaction with the Justice Department or the police because those are devolved matters.

Here we have all the ingredients for mistakes to be made and for offence to be created within Scotland by pursuing these procedures, which appear to be a great departure from what we have had in the past, when we have had some local, democratic control of those kinds of activities which, by their nature, are not perhaps always in the public domain.

§The Earl of Onslow
Perhaps I may introduce a totally different issue. By this amendment the prosecuting authorities are to continue to look for evidence. That is perhaps how it can be best précised. If they come up with evidence to show that a man has had nothing to do with a situation, and he is not really called Abdul al-Smith, but he is actually an elder of the kirk in Ullapool or somewhere, I hope that evidence will be reported back as soon as possible, the chap released as soon as possible and the mistake admitted. The evidence has to be evidence of either conviction or innocence. Both are equally important matters of evidence.

It is not the slightest bit surprising that Scottish devolution is returning to haunt Ministers by such little matters coming out of the woodwork and making the whole situation look odd and difficult. If I am allowed to mix metaphors, that particular egg in the cuckoo's nest was waiting to hatch.

§Baroness Scotland of Asthal
I can tell the noble Earl, Lord Onslow, that the review is a total review. Of course, we shall look at all the evidence that comes before the authorities to consider how best to act. I have already said that if the conditions imposed appeared. on reflection, no longer to be necessary, they 544 could be revoked. If there were a fresh investigation that demonstrated that the orders were no longer necessary, of course, we would do that.

We do not see devolution for Scotland as anything like an egg in a cuckoo's nest. Many people rejoice at it and consider it a thing of beauty and a wonder to behold.

On Question, amendment agreed to.

§ Clause 6 [Offences]:

§[Amendment No. 127 not moved.]

§ Clause 6 agreed to.

§ Clause 7 [Appeals relating to non-derogating control orders]:

§[Amendment No. 128 not moved.]

§The Duke of Montrose moved Amendment No. 129: ‘Page 8, line 37, at end insert—’‘(1A) Where—’
(a) a non-derogating order has not been confirmed or renewed, or
(b) an obligation imposed by a non-derogating order has not been modified on the application of the Secretary of State,
‘the Secretary of State may appeal to the appeal court against the refusal to confirm, renew or modify the order.’

§ The noble Duke said: Amendment No. 129 will add a couple of small paragraphs to the clause. The effect of the amendment creates a right of appeal for the Secretary of State in respect of various decisions of the court relating to the order. The reason for the amendment is that if the court is to make a determination in relation to confirmation, renewal and modification of the original order, it is appropriate that the Secretary of State is given the right to appeal refusal of an application to an appeal court. The definition of "appeal court" is provided in a subsequent amendment. I beg to move.

§Baroness Scotland of Asthal
Of course, I understand that Amendments Nos. 129 and 139 provide the Secretary of State with the right to appeal against the court if it decides not to modify the control orders. Amendment No. 129 refers to non-derogating control orders and I believe it is based on the assumption that all control orders will be made by the court. Amendment No. 139 refers to derogating control orders. I do not believe I need to repeat the arguments in favour of the Secretary of State making the non-derogating control orders because we have to bear in mind the effect of the matters that have already been dealt with. In the ordinary way, we would be suggesting on behalf of the Government that these amendments should be rejected because they are outwith the construct that we have.

We say that Amendment No. 139 could also be rejected because it seeks to give the right of appeal from the first-instance court decision—for example, to the Court of Appeal in England, Wales and Northern Ireland and the Inner House of the Court of Sessions in Scotland—but we say that that is unnecessary as, in any event, there would be a right of appeal to the Court of 545 Appeal from an initial decision by the court. That does not need to be provided for expressly. For that reason I urge the noble Duke not to press Amendments Nos. 129 and 139.

Government Amendment No. 132 seeks to amend a reference in Clause 7 to appeals against non-derogating control orders to the test that the Secretary of State will have to apply to impose a non-derogating control order. It amends that reference in the light of government Amendment No. 55, which preserves the same test as currently in the Bill, but in the proposed amended structure. I therefore commend Amendment No. 132, but I also take into account the fact that, in view of our earlier amendments, these amendments would fall.

§The Duke of Montrose
I thank the Minister for her explanation. I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§[Amendments Nos. 130 and 131 not moved.]

§Baroness Scotland of Asthal moved Amendment No. 132: ‘Page 9, line 6, leave out "1(1)(a) and (b)" and insert "3(A1)(a) and (b)’

§ On Question, amendment agreed to.

§[Amendment No. 133 not moved.]

§Baroness Scotland of Asthal moved Amendment No. 134: ‘Page 9, line 15, leave out second "the" and insert "a’

§ On Question, amendment agreed to.

§[Amendments Nos. 135 to 137 not moved.]

§Lord Kingsland moved Amendment No. 138: ‘Page 9, line 42, at end insert—’‘( ) The Secretary of State shall compensate a controlled person for any loss or damage unreasonably caused by an order or its renewal which is quashed, or by an obligation which is quashed.’

§ The noble Lord said: I will say something about this, because it is dealt with in both Clause 7 and Clause 8. Since we are now moving towards a single procedure, the principle that lies behind the amendment is important, and I want to speak to it briefly.

§ The amendment is aimed at a set of circumstances in which a control order is issued and then subsequently quashed, and, while it is in place, damage is unreasonably caused as a consequence of its imposition. Many of the consequences of the restraints that are sought to be imposed in Clause 1(3) will imply serious financial costs for the person who is the target of the control order. If that person incurs those costs unreasonably, it seems only right to us that he or she ought to be appropriately compensated. I beg to move.

§Lord Thomas of Gresford
I wholly support this amendment, although the whole of Clause 7 will fall shortly. It is important that compensation should be paid, when one of the controls suggested for a control order is a prohibition on a person carrying out his business or trade. It is not compensation for the loss of 546 liberty but for actual financial loss, which should be recompensed to the person who has suffered it. I hope the Government will accept the amendment when it comes in the next clause.

§Lord Falconer of Thoroton
This is an important point. We will, however, not accept the amendments. The High Court already has power to award costs in court proceedings, and the rules relating to costs will apply in future to parties to control order proceedings. However, this is a more profound issue than simply costs. I do not think costs are a difficulty.

The High Court also has the power to award damages, either under the Human Rights Act 1998 with regard to breaches of convention rights, or at common law—for example, with the remedy for trespass to land or to the person, or false imprisonment. The circumstances in which they could award that would depend upon the circumstances of the application for the order and the making of that order. We do not think it would be right in those circumstances to establish a statutory right to compensation for loss or damage resulting from the imposition of control orders. If such an order is unlawfully made and subsequently quashed, that individual may, depending on the facts, bring a separate action for damages for any breaches of his convention rights, and so on. In those circumstances, we do not think it is either right or necessary to make provision in the Bill.

§ 7.15 p.m.

§Lord Neill of Bladen
The language in the proposed amendment is "unreasonably caused", which I think would involve a scrutiny into the basis on which the order was originally sought and made. I wonder whether there are any considerations to which the noble and learned Lord would like to refer that might make it difficult to investigate the unreasonableness of the initial order? We are not talking about whether loss has been suffered. That is demonstrated by my example of a man being ordered not to work. He proves his loss. The issue, I think, is whether that loss was unreasonably caused by the seeking of the order in the first place, which may take us into the heartland of extreme sensitivity. Does he have any observations to make about that?

§Lord Falconer of Thoroton
Of course, it might take us into the heartland of extreme sensitivity. However, the hypothesis on which the noble Lord's amendment is made is that an order has been made, subsequently investigated by the courts and then discharged. I am saying, in effect, "Don't create a special statutory regime. Leave the common law of the Human Rights Act to deal with it". I say that that would be sufficient.

The noble Lord, Lord Neill of Bladen, is plainly right. Whether it be under the regime of the noble Lord, Lord Kingsland, or under these existing regimes, we are into a pretty sensitive area anyway.

§The Earl of Onslow
The noble and learned Lord says that we should not make a special statutory excuse under 547 this amendment, but this whole Bill is a special statutory operation anyway. Therefore, special protection is exactly what is needed.

§Lord Falconer of Thoroton
With respect to the noble Earl, that is not the right approach.

§The Earl of Onslow
The whole Bill is not the right approach.

§Lord Falconer of Thoroton
I appreciate that the noble Earl approaches this with that freshness of mind that one has come to expect from him.

Our approach is that certain changes need to be made to the law, but that we should leave the normal procedures of the law to deal with a situation, for example, where an order is wrongfully made. We should leave it to the High Court to make as many of the rules of procedure as possible, because we think the normal rules should apply as much as they can. However, we recognise that some changes are required.

§Lord Kingsland
The noble and learned Lord says that we should leave this issue to the High Court and its rules. If the system for making High Court rules was the system recognised under the normal procedure, I would feel entirely comfortable. However, the problem is that, in the schedule to the Bill, the normal way in which the High Court rules are made for all cases is displaced.

§Lord Falconer of Thoroton
The rules are displaced for the first occasion only. The rules that apply to the ordinary England and Wales High Court need to be amended to deal with this situation, and they will need to be ready by the end of the week. That is why, in the schedule, the Lord Chancellor can make changes for the first time. Thereafter, the changes can be made in the ordinary way, which is entirely consistent with what the noble Lord, Lord Kingsland, urges, and I support him on that. However, I recognise the difficulty of that first set of rules.

§Lord Kingsland
The noble and learned Lord has given the Committee an important piece of information. It goes right to the heart of all the issues connected with due process. What is in that first draft will determine whether your Lordships will be prepared to pass this Bill. However, we will not find out what is in that draft until after the Bill leaves this House. That is why the position of the Opposition is that we want a guarantee on the face of the Bill that the rules of court for these matters will not be politically determined.

I have enormous, almost boundless, respect for the noble and learned Lord the Lord Chancellor in the fair way that he goes about exercising his duties. Nevertheless, this Bill has a strong political flavour—far too strong for us. Your Lordships need a guarantee that those initial rules, which will be produced by the end of the week, conform to the principles of due process that we seek. For that reason, despite the noble and learned Lord's intervention, I still want Schedule 548 4 amended so that those rules are initially made by the Lord Chief Justice after, of course, consulting with the noble and learned Lord the Lord Chancellor. If that is so, I shall be confident that this amendment will be respected.

§Lord Falconer of Thoroton
Let me deal with that series of very important points. First, I am glad that I have been able to make it clear that the rules we are talking about being made by the Lord Chancellor involve only, ‘the first occasion after the passing of this Act",’ as provided for in paragraph 3(1)(a) of the schedule. Secondly, I unreservedly give an undertaking that those rules will not be political in nature but will be determined entirely by the requirements of the process.

However, I recognise that the noble Lord is looking for more assurance. As he knows, I am obliged to consult the Lord Chief Justice about the rules. That seems to be the practical way to deal with it. I need to consult the Lord Chief Justice about the best way to reassure the noble Lord. If there is any disagreement between myself and the Lord Chief Justice—although I would have to consult with the noble and learned Lord about this—the best way to reassure the noble Lord might be for that disagreement to he made public, but I cannot give that assurance until I have spoken to the Lord Chief Justice.

§Lord Kingsland
I was going to ask whether I could probe these matters further, but I think the noble and learned Lord has given me the answer to what would have been my question in the second half of his last sentence.

The noble and learned Lord has plainly not yet consulted the noble and learned Lord the Lord Chief Justice about the rules. We are now moving towards the middle of Monday evening; this Bill is due to leave your Lordships' House by about the same time tomorrow. It is absolutely crucial that we know much more about what is likely to appear in that first set of rules. I urge the noble and learned Lord the Lord Chancellor to make an early telephone call to the noble and learned Lord the Lord Chief Justice to try and throw some clearer light on many dark corners that have emerged as a result of the contents of the schedule.

§Lord Falconer of Thoroton
The noble Lord, Lord Kingsland, will know that the rules for SIAC address a very similar area, so he will know the broad shape of the rules. But I am as keen as I possibly could be to give the noble Lord the assurance he seeks.

§Lord Kingsland
Unlike the operation of SIAC, Article 6 applies to the control order system. Well, the noble and learned Lord says that only Article 6(1) applies, but, with great respect, I believe that he is wrong. I believe that the other sub-paragraphs of Article 6 also apply, for reasons which I would have had a chance to explain to your Lordships' House if we had not been somewhat short of time this afternoon. 549 It is clear that the SIAC rules will not do. The European Court of Human Rights has decided that Article 6 does not apply at all to immigration tribunals and the law that is based on immigration tribunals. The reason for that is that no civil rights in those proceedings are in issue. But civil rights are in issue here and, what is more, we cannot escape the jurisprudence of the European Court of Human Rights that says if a criminal penalty is dressed up as a civil penalty, nevertheless those proceedings are criminal and bring with them all the protections that Article 6 contains.

The rules that the noble and learned Lord will agree with the noble and learned Lord the Lord Chief Justice will have to respect the principles set out in Article 6. That is quite a different situation from SIAC.

§Lord Falconer of Thoroton
At the heart of the noble Lord's point is the question, "Can we see a copy of the rules?". We are working as hard as we can on this. I can give no assurances about when they will be produced, but they are in a moderately advanced state of preparation.

§Lord Thomas of Gresford
I hope that Article 6 principles are applied to the rules. It is quite clear to me that the proposed proceedings have the colour of a criminal hearing and that Article 6 will therefore apply in full. It is not just a question of civil obligations when you are depriving people of their liberty, whether to a large or a small degree.

This debate is going further and further away from the amendment, which I should like to focus on again. The noble Lord, Lord Neill of Bladen, made a very important point about the way in which the court will be looking at possibly secret material. In fact, in the new clause that we passed in Amendment No. 80, if it revokes an order, the court may, ‘direct that the Act is to have effect as if the order had been quashed".’

It seems only sensible that where compensation is to be paid, it should be paid within the system. A person who succeeds in quashing a control order should have his claim for compensation determined at the same time so that if there is material that cannot be disclosed to him, the same procedures are applied. The noble and learned Lord suggested that instead of doing that, the person who has the order quashed should start fresh proceedings in the High Court. That would be a complete waste of time and would give rise to all the problems to which the noble Lord, Lord Neill, pointed.

§Lord Forsyth of Drumlean
I should like to press the noble and learned Lord the Lord Chancellor and go back to the discussion in which, in response to my noble friend Lord Kingsland, he very kindly said that he would endeavour to make the rules of court available. Can he give the same undertaking in respect of the rules which will apply in the Court of Session, which presumably will be a matter for the Lord President? How would that work?

550 The noble Baroness, Lady Scotland, described devolution as a wonderful thing to behold. One of the things that one can behold in devolution is that the devolved administration are not allowed to do anything that falls outwith the European Convention on Human Rights. I am not a lawyer, but I think that producing the rules of court in the Court of Session to meet the requirements of this legislation will be an interesting task.

§Lord Fraser of Carmyllie
My noble friend Lord Forsyth must be right about that. If the noble and learned Lord the Lord Chancellor is prepared to give the concession that any rules this side of the Border are to be considered by the Lord Chief Justice, it must follow as a matter of law that a similar consultation is undertaken with the Lord President of the Court of Session.

§Lord Falconer of Thoroton
I am so glad to see the noble and learned Lord, Lord Fraser of Carmyllie, in this debate. He is of course right—indeed, I can go further on that issue. Rules and procedure of the Court of Session are a devolved matter. I could not make the rules for the Court of Session. It has been agreed, and it is reflected in the Bill, that the Lord President of the Court of Session should make the rules. Unlike the position of the Lord Chief Justice and the Lord Chief Justice in Northern Ireland, the normal ways of making the rules would not permit the rules to be ready in time. The Lord President will make the rules in Scotland because this is a devolved matter, unlike—and I hardly dare stray back into this area—terrorism, which is not a devolved matter.

§Lord Mayhew of Twysden
What position is the noble and learned Lord taking in relation to consulting the Lord Chief Justice of Northern Ireland?

§Lord Falconer of Thoroton
The Lord Chief Justice of Northern Ireland must also be consulted on the first occasion. That is expressed in the schedule.

§Lord Desai
In order to reassure the noble Lord, Lord Kingsland, will my noble and learned friend take cognisance of the recommendation of the Delegated Powers and Regulatory Reform Committee that such rules as are made should be subject to an affirmative procedure? If that is done, we will have sight of the rules before they go into operation.

§ 7.30 p.m.

§Lord Falconer of Thoroton
The problem that we have is with timing. We need these rules extraordinarily quickly. The first set of rules, which the Lord Chancellor will make in England and the Lord President will make in Scotland, can be made within the time by applying the usual processes in Scotland, but not in England. As I indicated in answer to questions asked by the noble Lord, Lord Kingsland, the rules are in a moderately advanced state of preparation. I will try to make them available as quickly as I possibly can.

§The Earl of Onslow
I am a beacon of clarity compared with the Government on this matter. With 551 five O-levels—which is all I have—and no university training, that shows what a serious muddle the Government are in. This provision would have the Chief Justice of Scotland and the Chief Justice of Northern Ireland making the rules judicially. In England, they would be made politically. That is a muddle. If the noble and learned Lord the Lord Chancellor cannot see that perhaps he did not deserve to pass his O-levels let alone go to university. This is exactly what I mean by a muddle.

§Lord Falconer of Thoroton
The noble Earl puts his point with extreme clarity as ever. Surely, the fact that we have not reserved terrorism but have reserved the rules of the Court of Session is what the devolution settlement is. In dealing with the Bill before us, we must respect the devolution settlement. That is what we are doing.

§Lord Forsyth of Drumlean
I am grateful to the noble and learned Lord the Lord Chancellor. I am endeavouring to be helpful. This may be a false point and. as he knows, I am not a lawyer. I understand that this is a devolved measure. Indeed, that was my question. But as I understand it, in respect of all devolved functions by the Scottish Parliament, it must act in accordance with the European Convention on Human Rights. How can it provide for a set of rules of procedure unless the rules are totally consistent with the European convention? That is what is making my brain hurt.

§Lord Falconer of Thoroton
I agree with that and so must our rules.

§Lord Goodhart
Since the rules are going to be extremely important and will depart from traditional practices in a number of important ways, is it not important that Parliament should have some control over them? I quite understand the importance of getting them very quickly indeed, but would this not be an appropriate occasion on which it would be proper to use the procedure which is used from time to time in which the rules could come into effect immediately but would cease to have effect unless they were approved by both Houses within 40 days?

§Lord Falconer of Thoroton
May I give that proposal some thought? Our problem with it would be getting them in force in time. If there is a means by which they can be properly looked at, we will certainly consider it, so I will certainly take that suggestion away.

I will return to the human rights issue, because although the noble Lord, Lord Forsyth of Drumlean, is not a lawyer, behind him is the former Lord Advocate, the noble and learned Lord, Lord Fraser of Carmyllie, who was looking quizzical about the point that I made. I was asserting that the rules of court would have to be, in Scotland, in England and Wales and also in Northern Ireland, consistent with convention rights. I suspect that the noble and learned Lord's concern was that that was an unusual procedure. How could it be consistent with 552 the ECHR, particularly when the position would be that some of the material would not have been made available to the person who was the subject of the control order?

The noble and learned Lord will know that, in the Chahal case in 1997, the ECHR stated that, when we were dealing with deportation—as in that case—and certain stuff might harm national security, using the special advocate procedure would make it consistent with the human rights convention subject to other factors. On two occasions, the courts in this country have looked at the SIAC procedure with reference to Article 6. On two separate occasions the courts have said that it is consistent with the convention in essence. What they are saying is that, as long as the procedure allows the court to look at it, and there is a special advocate on behalf of the suspect, it is okay.

§Lord Lloyd of Berwick
Is the Lord Chancellor is referring to the Rehman case, which is the leading case on the subject and was a deportation case? There is an essential difference between such a case and other cases. So far as I know, no court has yet decided that the SIAC procedure would be good under the European convention if applied by a court.

§Lord Falconer of Thoroton
I will read from the case of "A" in the Court of Appeal which then went to the House of Lords on the other point but not on this particular point. The following quotation is from paragraph 57 of the judgment of the noble and learned Lord, Lord Woolf. I appreciate that people should look at the whole case rather than reading only a paragraph. I will not give the citation but people can look it up. The noble and learned Lord stated: ‘As to this, I agree with the commission that the proceedings are not criminal".’ It should be remembered that these are proceedings that lead to someone being put in prison. He continued: ‘I would, however, accept the fact that proceedings are civil proceedings within Article 6",’ so Article 6 applies. He went on to say: ‘However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of cross-examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with Article 6, it is necessary to look at the proceedings as a whole including the appeal before this court. When this is done and the exception in relation to national security referred to in Article 6 given due weight, I am satisfied there is no contravention".’

§Lord Lloyd of Berwick
That was reversed in the House of Lords.

§Lord Falconer of Thoroton
It was on the point about proportionality and in relation to discrimination, but not in relation to this point. There is another case called "M" in which the Court of Appeal, in a unanimous judgment, stated that it could not leave the case without saying that it accepts that the SIAC 553 procedure is just within the meaning of the convention. There are two decisions of the Court of Appeal in this country that say that it is a just procedure.

§Lord Thomas of Gresford
The noble and learned Lord the Lord Chancellor must know that that the Judicial Committee of the House of Lords reserved the position in relation to Article 6. The committee found it unnecessary to come to any conclusion on it and reserves the position entirely. The committee did not support what had been said in the Court of Appeal in the way that the Lord Chancellor is implying by his reply—I know that he does not mean to, but that is the implication of what he says.

§Lord Falconer of Thoroton
I am saying specifically that the Court of Appeal has looked at this matter on two separate occasions and said that it complied with the ECHR. That is the point that the noble Lord has to deal with. I should also make it clear, before the noble Lord deals with it, that the Court of Appeal was aware that the two cases were deportation cases.

§Lord Thomas of Gresford
In the light of the Lord Chancellor's reply, will he give us an unqualified undertaking that he will not seek a derogation in relation to Article 6?

§Lord Falconer of Thoroton
We are not suggesting for one moment that we would seek a derogation from Article 6, and I give that assurance.

§Lord Kingsland
There are two matters on which the noble and learned Lord touched. The first is in relation to the question asked by my noble friend Lord Forsyth. In my submission to the noble and learned Lord. there are at least two distinctions between the Scottish situation and our own. The first is that the rules in Scotland will be decided judicially and here they will derive from the noble and learned Lord—he might say quasi-judicially, but certainly not wholly judicially. Secondly, in Scotland, if those rules do not conform with Article 6, they will be struck down by the courts. In this country, the courts can only go as far as making a declaration of incompatibility.

The noble and learned Lord is whispering across a not very crowded Chamber.

§Lord Falconer of Thoroton
Again, I would not regard the rules of court as being primary legislation. Therefore, it is not like Part 4 of the Act.

§Lord Kingsland
Whichever way the noble and learned Lord looks at it, a court in this country will not strike down a procedure that is held to be contrary to Article 6. The furthest that it can go is to make a declaration of incompatibility.

On the long line of jurisprudence that the noble and learned Lord cited about Article 6 one thing is clear. In so far as the SIAC procedure has dealt with the deportation of aliens, or the incarceration of aliens because to deport them would breach Article 3 of the 554 European Convention on Human Rights, it is clear that Article 6 rights do not apply to them because under the court system, civil rights are not in issue. In my submission, if our own courts looked at the application of Article 6 rights to British citizens— whatever else you can do with British citizens, you cannot deport them—I believe the answer would be wholly different.

§Lord Fraser of Carmyllie
Is not my noble friend Lord Kingsland absolutely right about this? As I am sure the noble and learned Lord will recollect, when the Scotland Act 1998 was brought into force, one of the provisions in that statute was that the European Convention on Human Rights should be brought into force with immediate effect. The fact of the matter was that it was brought into effect in Scotland a year before it was brought into effect in the rest of the United Kingdom. In such circumstances, if my noble and learned friend Lord Cullen was dumb enough to introduce rules into the Court of Session which were in some respects not compliant with the European convention, other members of that court would strike them down. That must be the case. It is not a matter, as my noble friend Lord Kingsland says, that it might be compliant, or there could be some judgment of noncompliance; it has to comply under the law.

What I am struggling to understand is the noble and learned Lord the Lord Chancellor saying, "We can sort of do it in England and we shall try to ensure that it complies with the European convention". What we in Scotland are trying to be clear about concerns the absolute requirement in law that what is introduced in Scotland is compliant with the European Convention. There can be no doubt or grey area about that which the courts might sort out sooner or later.

I am surprised that the noble and learned Lord did not listen to what the noble and learned Lord, Lord Cullen, said in a most interesting intervention during the Constitutional Reform Bill when he pointed out, absolutely correctly, that there is no such thing as a decision of the House of Lords in its judicial capacity; there is a decision of the House of Lords in a Scottish case, or a decision of the House of Lords in an English or some other case. Lawyers are not that dumb. If there is a decision by the court in England in an English appeal by the House of Lords. it is to be expected. if they are going to be consistent, that they will come to much the same or exactly the same conclusion in Scotland. Nevertheless, there are two separate sets of appeals.

What is fascinating about this debate is that it underlines and highlights for the first time that we have a statute passed by this Parliament in 1998 which said. "You must secure compliance with the European Convention on Human Rights in Scotland". However, it does not say the same thing for England and the rest of the United Kingdom. That is what we are trying to tease from the noble and learned Lord, to understand exactly what the situation is.

§Lord Falconer of Thoroton
I am grateful for the opportunity to clarify the matter. First, I accept 555 entirely that rules promulgated by the Lord President must comply with the European convention and, if they do not, they can be struck down by the Court of Session or, indeed. by any other court that looked at them. Secondly, the rules promulgated by the Lord Chancellor, having consulted with the Lord Chief Justice, also have to comply with the European Convention because they are not primary legislation. It is not a question of whether or not a declaration of incompatibility is given. Short of primary legislation, a public authority in England and Wales cannot act incompatibly with the European convention.

I am sorry that I did not make it clear before—this is entirely my fault—that I agreed entirely with proposition number one and proposition number two. The third proposition that the noble and learned Lord, Lord Fraser of Carmyllie, made was that I should have listened to what the Lord President, the noble and learned Lord, Lord Cullen, said about there being no such thing as a decision of the House of Lords sitting in a judicial capacity. I say with great humility that I did listen to what the noble and learned Lord, Lord Cullen, said, and I agreed with him an amendment to the Constitutional Reform Bill that I then put before this House. This House agreed with it because it also listened to what the noble and learned Lord, Lord Cullen, said. I always listen to what the noble and learned Lord, Lord Cullen, says.

§Lord Phillips of Sudbury
Has not the Committee slightly lost the track of this debate? Surely we should be talking about the merits of the rules that are ultimately put forward. All sorts of rules could be compliant with the European convention without commending themselves to this House or to any other House. I must confess that non-lawyers listening to this debate must wonder where we are getting to. Surely merit is what we are talking about, not the European convention.

§ 7.45 p.m.

§Lord Kingsland
I wholly agree with the noble Lord, Lord Phillips. That debate will take place later tonight. I promise that this will be the last time that I rise to my feet in the course of discussing this amendment. Will the noble and learned Lord the Lord Chancellor guarantee that out of all this we will find a set of rules which are the same in England, in Scotland and in Northern Ireland? It would be quite intolerable if the rights given to, or obligations imposed on, potential controllees differed from one part of the United Kingdom to another. Quite apart from whatever these rules are going to be, can I have the noble and learned Lord's assurance that they will all say the same thing?

§Lord Falconer of Thoroton
Of course I cannot give that guarantee. Any noble Lord will know perfectly well that I cannot give that guarantee. Noble Lords will know that in Scotland there are procedures to deal with contempt which may lead to imprisonment, as is the case in England and Wales, and they have different 556 rules. However, I do not suggest for one moment that either of those sets of different rules is unfair. Therefore, the answer is no.

§Lord Kingsland
With great respect the noble and learned Lord knows exactly what I mean. It is true that each jurisdiction has its own special way of dealing with certain things procedurally. I was plainly referring to the substance of the rules and the substance of the protections that lie behind them. That is the guarantee that I seek. However, I think that the noble and learned Lord needs time for repose and reconsideration. Therefore, I shall not press him further. I shall simply beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

§The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)
I suggest that the Committee stage begins again not before 8.45 p.m. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Back to Electoral Law Act (Northern Ireland) 1962 (Amendment No. 2) Order 2005